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Exhibit 10.78    
    


EXECUTION COPY  


NEXTEL PARTNERS, INC.  


 TO  


 BNY WESTERN TRUST COMPANY,

TRUSTEE  




 INDENTURE  


 Dated as of May 19, 2004  




 8 1/8% Senior Notes due 2011  







  
 

    Nextel Partners, Inc.    
    
    Reconciliation and tie between Trust Indenture Act
  of 1939 and Indenture, dated as of May 19, 2004    
    



	Trust Indenture Act Section
 
	 	Indenture

Section

	Section 310(a)(1)	 	6.09
	                    (a)(2)	 	6.09
	                    (a)(3)	 	Not Applicable
	                    (a)(4)	 	Not Applicable
	                    (a)(5)	 	6.09
	                    (b)	 	6.08, 6.10
	Section 311(a)	 	6.13
	                    (b)	 	6.13
	                    (c)	 	6.13
	Section 312(a)	 	7.01, 7.02
	                    (b)	 	7.02(b)
	                    (c)	 	7.02(c)
	Section 313(a)	 	7.03
	                    (b)	 	7.03
	                    (c)	 	7.03
	                    (d)	 	7.03(b)
	Section 314(a)(1)-(3)	 	7.04
	                    (a)(4)	 	10.17
	                    (b)	 	Not Applicable
	                    (c)(1)	 	1.02, 4.01, 12.04
	                    (c)(2)	 	1.02, 4.01, 12.04
	                    (c)(3)	 	12.04
	                    (d)	 	Not Applicable
	                    (e)	 	1.02
	Section 315(a)	 	6.01, 6.03
	                    (b)	 	6.02
	                    (c)	 	6.01
	                    (d)	 	6.01
	                    (e)	 	5.14
	Section 316(a)(1)(A)	 	5.12
	                    (a)(1)(B)	 	5.13
	                    (a)(2)	 	Not Applicable
	                    (b)	 	5.08
	                    (c)	 	1.04
	Section 317(a)(1)	 	5.03
	                    (a)(2)	 	5.04
	                    (b)	 	10.03
	Section 318(a)	 	1.07










  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	1
	 	
 Section 1.01.	
 	

Definitions	
 	

1
	 	Section 1.02.	 	Compliance Certificates and Opinions	 	20
	 	Section 1.03.	 	Form of Documents Delivered to Trustee	 	21
	 	Section 1.04.	 	Acts of Holders; Record Dates	 	21
	 	Section 1.05.	 	Notices, Etc., to Trustee and Company	 	23
	 	Section 1.06.	 	Notice to Holders; Waiver	 	23
	 	Section 1.07.	 	Conflict with Trust Indenture Act	 	24
	 	Section 1.08.	 	Effect of Headings and Table of Contents	 	24
	 	Section 1.09.	 	Successors and Assigns	 	24
	 	Section 1.10.	 	Separability Clause	 	24
	 	Section 1.11.	 	Benefits of Indenture	 	24
	 	Section 1.12.	 	Governing Law	 	24
	 	Section 1.13.	 	Legal Holidays	 	24
	 	Section 1.14.	 	No Recourse Against Others	 	24
	
ARTICLE 2. SECURITY FORMS	
 	

25
	 	
 Section 2.01.	
 	

Forms Generally	
 	

25
	 	Section 2.02.	 	Form of Face of Security	 	26
	 	Section 2.03.	 	Form of Reverse of Security	 	28
	 	Section 2.04.	 	Form of Trustee's Certificate of Authentication	 	33
	 	Section 2.05.	 	Restrictive Legends	 	33
	
ARTICLE 3. THE SECURITIES	
 	

34
	 	
 Section 3.01.	
 	

Title and Terms	
 	

34
	 	Section 3.02.	 	Denominations	 	35
	 	Section 3.03.	 	Execution, Authentication, Delivery and Dating	 	35
	 	Section 3.04.	 	Temporary Securities	 	35
	 	Section 3.05.	 	Registration, Registration of Transfer and Exchange	 	36
	 	Section 3.06.	 	Book-Entry Provisions for Global Security	 	37
	 	Section 3.07.	 	Special Transfer Provisions	 	38
	 	Section 3.08.	 	Mutilated, Destroyed, Lost and Stolen Securities	 	40
	 	Section 3.09.	 	Payment of Interest; Interest Rights Preserved	 	40
	 	Section 3.10.	 	Persons Deemed Owners	 	41
	 	Section 3.11.	 	Cancellation	 	41
	 	Section 3.12.	 	Computation of Interest	 	42
	 	Section 3.13.	 	CUSIP, CINS and ISIN Numbers	 	42
	
ARTICLE 4. SATISFACTION AND DISCHARGE	
 	

42
	 	
 Section 4.01.	
 	

Satisfaction and Discharge of Indenture	
 	

42
	 	Section 4.02.	 	Application of Trust Money	 	43
	
ARTICLE 5. REMEDIES	
 	

43
	 	
 Section 5.01.	
 	

Events of Default	
 	

43
	 	Section 5.02.	 	Acceleration of Maturity; Rescission and Annulment	 	44
	 	Section 5.03.	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	45
	 	Section 5.04.	 	Trustee May File Proofs of Claim	 	46
	 	 	 	 	 



ii







 

	 	Section 5.05.	 	Trustee May Enforce Claims Without Possession of Securities	 	46
	 	Section 5.06.	 	Application of Money Collected	 	46
	 	Section 5.07.	 	Limitation on Suits	 	47
	 	Section 5.08.	 	Unconditional Right of Holders to Receive Principal, Premium and Interest	 	47
	 	Section 5.09.	 	Restoration of Rights and Remedies	 	47
	 	Section 5.10.	 	Rights and Remedies Cumulative	 	47
	 	Section 5.11.	 	Delay or Omission Not Waiver	 	48
	 	Section 5.12.	 	Control by Holders	 	48
	 	Section 5.13.	 	Waiver of Past Defaults	 	48
	 	Section 5.14.	 	Undertaking for Costs	 	48
	 	Section 5.15.	 	Waiver of Stay of Extension Laws	 	48
	
ARTICLE 6. THE TRUSTEE	
 	

49
	 	
 Section 6.01.	
 	

Certain Duties and Responsibilities	
 	

49
	 	Section 6.02.	 	Notice of Defaults	 	49
	 	Section 6.03.	 	Certain Rights of Trustee	 	49
	 	Section 6.04.	 	Not Responsible for Recitals or Issuance of Securities	 	50
	 	Section 6.05.	 	May Hold Securities	 	50
	 	Section 6.06.	 	Money Held in Trust	 	50
	 	Section 6.07.	 	Compensation and Reimbursement	 	50
	 	Section 6.08.	 	Conflicting Interests	 	51
	 	Section 6.09.	 	Corporate Trustee Required; Eligibility	 	51
	 	Section 6.10.	 	Resignation and Removal; Appointment of Successor	 	51
	 	Section 6.11.	 	Acceptance of Appointment by Successor	 	52
	 	Section 6.12.	 	Merger, Conversion, Consolidation or Succession to Business	 	53
	 	Section 6.13.	 	Preferential Collection of Claims Against Company	 	53
	 	Section 6.14.	 	Appointment of Authenticating Agent	 	53
	
ARTICLE 7. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY	
 	

54
	 	
 Section 7.01.	
 	

Company to Furnish Trustee Names and Addresses of Holders	
 	

54
	 	Section 7.02.	 	Preservation of Information; Communications to Holders	 	54
	 	Section 7.03.	 	Reports by Trustee	 	55
	 	Section 7.04.	 	Reports by Company	 	55
	
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	
 	

55
	 	
 Section 8.01.	
 	

Company May Consolidate, Etc. Only on Certain Terms	
 	

55
	 	Section 8.02.	 	Successor Substituted	 	56
	
ARTICLE 9. SUPPLEMENTAL INDENTURES	
 	

57
	 	
 Section 9.01.	
 	

Supplemental Indentures Without Consent of Holders	
 	

57
	 	Section 9.02.	 	Supplemental Indenture with Consent of Holders	 	57
	 	Section 9.03.	 	Execution of Supplemental Indentures	 	58
	 	Section 9.04.	 	Effect of Supplemental Indentures	 	58
	 	Section 9.05.	 	Conformity with Trust Indenture Act	 	58
	 	Section 9.06.	 	Reference in Securities to Supplemental Indentures	 	58
	
ARTICLE 10. COVENANTS	
 	

58
	 	
 Section 10.01.	
 	

Payment of Principal, Premium and Interest	
 	

58
	 	Section 10.02.	 	Maintenance of Office or Agency	 	58
	 	Section 10.03.	 	Money for Security Payments to be Held in Trust	 	59
	 	 	 	 	 





iii







 

	 	Section 10.04.	 	Existence	 	59
	 	Section 10.05.	 	Maintenance of Properties	 	60
	 	Section 10.06.	 	Payment of Taxes and Other Claims	 	60
	 	Section 10.07.	 	Maintenance of Insurance	 	60
	 	Section 10.08.	 	Limitation on Consolidated Debt	 	60
	 	Section 10.09.	 	Limitation on Restricted Payments	 	60
	 	Section 10.10.	 	Restricted Subsidiaries	 	63
	 	Section 10.11.	 	Transactions with Affiliates	 	64
	 	Section 10.12.	 	Liens	 	64
	 	Section 10.13.	 	Change of Control	 	64
	 	Section 10.14.	 	Dividend and Other Payment Restrictions Affecting Subsidiaries	 	65
	 	Section 10.15.	 	Activities of the Company and Restricted Subsidiaries	 	65
	 	Section 10.16.	 	Provision of Financial Information	 	66
	 	Section 10.17.	 	Statement by Officers as to Default: Compliance Certificates	 	66
	 	Section 10.18.	 	Waiver of Certain Covenants	 	66
	 	Section 10.19.	 	Limitation on Issuances and Sales of Equity Interests in Wholly Owned Subsidiaries	 	66
	 	Section 10.20.	 	Payments for Consent	 	67
	 	Section 10.21.	 	Asset Sales	 	67
	
ARTICLE 11. REDEMPTION OF SECURITIES	
 	

68
	 	
 Section 11.01.	
 	

Right of Redemption	
 	

68
	 	Section 11.02.	 	Applicability of Article	 	68
	 	Section 11.03.	 	Election to Redeem; Notice to Trustee	 	68
	 	Section 11.04.	 	Selection by Trustee of Securities to Be Redeemed	 	69
	 	Section 11.05.	 	Notice of Redemption	 	69
	 	Section 11.06.	 	Deposit of Redemption Price	 	69
	 	Section 11.07.	 	Securities Payable on Redemption Date	 	70
	 	Section 11.08.	 	Securities Redeemed in Part	 	70
	
ARTICLE 12. DEFEASANCE AND COVENANT DEFEASANCE	
 	

70
	 	
 Section 12.01.	
 	

Company's Option to Effect Defeasance or Covenant Defeasance	
 	

70
	 	Section 12.02.	 	Defeasance and Discharge	 	70
	 	Section 12.03.	 	Covenant Defeasance	 	71
	 	Section 12.04.	 	Conditions to Defeasance or Covenant Defeasance	 	71
	 	Section 12.05.	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions	 	72
	 	Section 12.06.	 	Reinstatement	 	73




 
 

EXHIBITS    
    



	EXHIBIT A	 	Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S
	

EXHIBIT B	
 	

Form of Certificate to Be Delivered in Connection with Transfers to Non-QIB Institutional Accredited Investors
	

EXHIBIT C	
 	

Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S




iv










        INDENTURE, dated as of May 19, 2004, between Nextel Partners, Inc., a Delaware corporation (herein called the "Company"), having its principal office at 4500 Carillon
Point, Kirkland, Washington 98033 and BNY Western Trust Company, as Trustee (herein called the "Trustee"). 


RECITALS OF THE COMPANY  


        The Company has duly authorized the creation of an issue of its 8 1/8% Senior Notes due 2011, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture. 


        All
things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done. 


        NOW,
THEREFORE, THIS INDENTURE WITNESSETH: 


        For
and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows: 


ARTICLE 1.  


 DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION  


Section 1.01.    Definitions.    


        For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: 



        (1)   the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; 


        (2)   all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; 



        (3)   whenever
this Indenture requires that a particular ratio or amount be calculated with respect to a specified period after giving effect to certain transactions or events
on a pro forma basis, such calculation will be made as if the transactions or events occurred on the first day of such period, unless otherwise
specified herein, and all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles (whether or not such is indicated
herein), and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation; 



        (4)   unless
the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or Section, as the case may be, of this Indenture; 


        (5)   the
words "herein", "hereof' and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and 


        (6)   each
reference herein to a rule or form of the Commission shall mean such rule or form and any rule or form successor thereto, in each case as amended from time to time. 




        Certain
terms, used principally in Article 6, are defined in that Article. 


        Whenever
this Indenture requires that a particular ratio or amount be calculated with respect to a specified period after giving effect to certain transactions or events on a  pro forma basis, such calculation
shall be made as if the transactions or events occurred on the first day of such period, unless otherwise specified. 







 



        "Acquired Debt" means Debt of a Person (i) existing at the time such Person becomes a Restricted Subsidiary or assumed by the
Company or a Restricted Subsidiary in connection with the acquisition of assets from such Person and (ii) secured by a Lien encumbering any asset of such specified Person. 


        "Act", when used with respect to any Holder, has the meaning specified in Section 1.04. 



        "Additional Interest" means all additional interest then owing pursuant to section 6 of the Registration Rights Agreement. 


        "Additional Securities" means any Securities (other than the Initial Securities) issued under this Indenture in accordance with the terms
and conditions hereof, as part of the same series as the Initial Securities. 


        "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. "Affiliate" shall be deemed to include, but only for purposes of Section 10.11 and without limiting the application of the preceding sentence for the purpose of
such or any other Section, any Person owning, directly or indirectly, (i) 10% or more of the Company's outstanding Common Stock or (ii) securities having 10% or more of the total voting
power of the Company's Voting Stock. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. No
individual shall be deemed to be controlled by or under common control with any specified Person solely by virtue of his or her status as an employee or officer of such specified Person or of any
other Person controlled by or under common control with such specified Person. 


        "Agent Members" has the meaning provided in Section 3.06(a). 


        "Annualized Operating Cash Flow" means, for any fiscal quarter, the Operating Cash Flow for such fiscal quarter multiplied by four. 


        "Asset Sale" means (i) the sale, lease, conveyance or other disposition of any assets or rights (including, without limitation, by
way of a sale and leaseback) other than sales of inventory and obsolete equipment in the ordinary course of business (provided that the sale, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 10.13 and/or the provisions of Section 8.01 and not by the
provisions of Section 10.21), and (ii) the issue or sale by the Company or any of its Restricted Subsidiaries of Capital Stock of any of the Company's Subsidiaries, in the case of either
clause (i) or (ii), whether in a single transaction or a series of related transactions (a) that have a fair market value in excess of $5.0 million or (b) for net proceeds
in excess of $5.0 million. Notwithstanding the foregoing, the following items shall not be deemed to be Asset Sales: (i) a transfer of assets by the Company to a Wholly Owned Restricted
Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Capital Stock by a Wholly Owned Restricted Subsidiary
to the Company or to another Wholly Owned Restricted Subsidiary, (iii) a Restricted Payment that is permitted by Section 10.09, (iv) Permitted Joint Ventures and (v) any
License Exchange. 


        "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 hereof to act on behalf of the Trustee
to authenticate Securities. 



        "Average Life" means, at any date of determination with respect to any Debt, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date of 



2







 




determination
to the dates of each successive scheduled principal payment of such Debt and (b) the amount of such principal payment by (ii) the sum of all such principal payments. 



        "Beneficial Owner" means a beneficial owner as defined in Rules 13d-3 and 13d-5 under the Exchange Act (or
any successor rules), including the provision of such Rules that a person shall be deemed to have beneficial ownership of all securities that such person has a right to acquire within 60 days,  provided that a person shall not be deemed a beneficial owner of, or to own beneficially, any securities if such beneficial ownership (1) arises
solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to, and in accordance with, the Exchange Act and the applicable rules and regulations
thereunder and (2) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act. 


        "Board of Directors" means the board of directors of the Company. 


        "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors (unless the context specifically requires that such resolution be adopted by a majority of the Disinterested Directors, in which case by
a majority of such directors) and to be in full force and effect on the date of such certification and delivered to the Trustee. 



        "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the Borough
of Manhattan, The City of New York are authorized or obligated by law or executive order to close. 


        "Capital Lease Obligations" of any Person means the obligations to pay rent or other amounts under lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which are required to be classified and accounted for as a capital lease or a liability on the face of a balance sheet of such
Person determined in accordance with generally accepted accounting principles and the amount of such obligations shall be the capitalized amount thereof in accordance with generally accepted
accounting principles and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty. 


        "Capital Stock" of any Person means any and all shares, interests, participations or other equivalents (however designated) of stock of,
or other ownership interests in, such Person. 


        "Change of Control" means the occurrence of any of the following events: 



        (a)   any
person or group of persons (as such term is used in Section 13(d)(3) of the Exchange Act and the regulations thereunder) other than a Permitted Holder is or
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total Voting Stock or Total Common Equity of the Company; provided that no
Change of Control shall be deemed to occur pursuant to this clause (a) if the person is a corporation with outstanding debt securities having a maturity at original issuance of at least one
year and if such debt securities are rated Investment Grade by S&P or Moody's for a period of at least 90 consecutive days, beginning on the date of such event (which period will be extended up to 90
additional days for as long as the rating of such debt securities is under publicly announced consideration for possible downgrading by the applicable rating agency); 


        (b)   the
Company consolidates with, or merges with or into, another Person other than a Permitted Holder or sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets to any Person other than a Permitted Holder, or any Person other than a Permitted Holder consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such 




3







 





transaction
where (i) the outstanding Voting Stock of the Company is converted into or exchanged for (1) Voting Stock (other than Redeemable Stock) of the surviving or transferee Person
or (2) cash, securities and other property in an amount which could be paid by the Company as a Restricted Payment under this Indenture and (ii) immediately after such transaction no
person or group of persons (as such term is used in Section 13(d)(3) of the Exchange Act and the regulations thereunder) is the Beneficial Owner, directly or indirectly, of more than 50% of the
total Voting Stock or Total Common Equity of the surviving or transferee Person; provided that no Change of Control shall be deemed to occur pursuant to
this clause (b), if the surviving or transferee Person or the person referred to in clause (b)(ii) is a corporation with outstanding debt securities having a maturity at original
issuance of at least one year and if such debt securities are rated Investment Grade by S&P or Moody's for a period of at least 90 consecutive days, beginning on the date of such event (which period
will be extended up to 90 additional days for as long as the rating of such debt securities is under publicly announced consideration for possible downgrading by the applicable rating agency); 



        (c)   during
any consecutive two-year period, individuals who at the beginning of such period constituted the Board of Directors (together with (i) any
directors who are members of the Board of Directors on the date hereof, (ii) any new directors whose election by such Board of Directors or whose nomination for election by the stockholders of
the Company was approved by a vote of 66 2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was
previously so approved, and (iii) any new directors appointed or selected by a Permitted Holder, whether pursuant to a transaction of a type described in either of the preceding paragraphs
(a) and (b), pursuant to a contractual right or pursuant to a right granted under the Company's certificate of incorporation or by-laws) cease for any reason to constitute a
majority of the Board of Directors then in office; or 


        (d)   the
adoption of a plan relating to the liquidation or dissolution of the Company. 




        Any
event that would constitute a Change of Control pursuant to clause (a) or (b) above but for the proviso thereto shall not be deemed to be a Change of Control until such
time (if any) as the conditions described in such proviso cease to have been met. 


        "Closing Date" means the date on which the Securities are first issued hereunder. 


        "Closing Price" on any Trading Day with respect to the per share price of any shares of Capital Stock means the last reported sale price
regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the New York Stock Exchange or, if such
shares of Capital Stock are not listed or admitted to trading on such exchange, on the principal national securities exchange on which such shares are listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if such shares are not listed or admitted to trading on any national securities exchange or quoted on the
Nasdaq Stock Market but the issuer is a Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act) and the principal securities exchange on which such shares are listed or
admitted to trading is a Designated Offshore Securities Market (as defined in Rule 902(a) under the Securities Act), the average of the reported closing bid and asked prices regular way on such
principal exchange, or, if such shares are not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq Stock Market and the issuer and principal securities exchange
do not meet such requirements, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm of
national standing that is selected from time to time by the Company for that purpose. 



4







 




        "Code" means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder. 



        "Committed Capital Contribution" means the irrevocable cash commitments pursuant to those certain Subscription and Contribution Agreements
by and among the Company, Nextel WIP Corp., Motorola and the Cash Equity Investors (as defined therein) as in effect on the date hereof. 


        "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such
time. 


        "Common Stock" of any Person means Capital Stock of such Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other class of such Person. 


        "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture and thereafter "Company" shall mean such successor Person. 



        "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. 


        "Consolidated Debt" means the aggregate amount of Debt of the Company and its Restricted Subsidiaries on a Consolidated basis, outstanding
at the date of determination. 


        "Consolidated Debt to Annualized Operating Cash Flow Ratio" means, as at any date of determination, the ratio of (i) Consolidated
Debt to (ii) the Annualized Operating Cash Flow of the Company for the most recently completed fiscal quarter of the Company for which financial statements are available. 


        "Consolidated Interest Expense" of any Person means, for any period, (i) the aggregate interest expense and fees and other
financing costs in respect of Debt (including amortization of original issue discount and non-cash interest payments and accruals), (ii) the interest component in respect of Capital
Lease Obligations and any deferred payment obligations of such Person and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with generally accepted accounting principles,
(iii) all commissions, discounts, other fees and charges owed with respect to letters of credit and bankers' acceptance financing and net costs (including amortizations of discounts) associated
with interest rate swap and similar agreements and with foreign currency hedge, exchange and similar agreements and (iv) the product of (a) all dividend payments, whether or not in cash,
on any series of Preferred Capital Stock of such Person or any of its Restricted Subsidiaries, other than dividend payments on Capital Stock payable solely in Capital Stock of the Company (other than
Redeemable Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a Consolidated basis in accordance with generally accepted accounting principles. 


        "Consolidated Net Income" and "Consolidated Net Loss" mean, for any period, the net income or net loss, as the case may be, of the Company
and its Restricted Subsidiaries for such period, all as determined on a Consolidated basis in accordance with generally accepted accounting principles, adjusted, to the extent included in calculating
such net income or net loss, as the case 



5







 




may
be, by excluding without duplication (a) any after-tax gain or loss attributable to the sale, conversion or other disposition of assets other than in the ordinary course of
business, (b) any after-tax gains resulting from the write-up of assets and any loss resulting from the write-down of assets, (c) any
after-tax gain or loss on the repurchase or redemption of any securities (including in connection with the early retirement or defeasance of any Debt), (d) any foreign exchange gain
or loss, (e) all payments in respect of dividends on shares of Preferred Capital Stock of the Company, (f) any other extraordinary, non-recurring or unusual items incurred by
the Company or any of its Restricted Subsidiaries, (g) the net income (or loss) of any Person acquired by the Company or any Restricted Subsidiary in a
pooling-of-interests transaction for any period prior to the date of such transaction, (h) all income or losses of Unrestricted Subsidiaries and Persons (other than
Subsidiaries) accounted for by the Company using the equity method of accounting and (i) the net income (but not net loss) of any Restricted Subsidiary which is subject to any judgment, decree,
order or governmental regulation which prevent the payment of dividends or the making of distributions to the Company but only to the extent of such restrictions. 


        "Consolidated Net Income (Loss)" means, for any period, the Company's Consolidated Net Income or Consolidated Net Loss for such period, as
applicable. 


        "Consolidated Net Worth" of any Person means the consolidated stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, no effect shall be given to adjustments following the Closing Date to the accounting books and records of the Company in accordance with Accounting Principles Board Opinions Nos. 16 and
17 (or successor opinions thereto) or otherwise resulting from the acquisition of control of the Company by another Person. 



        "Consolidation" means the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Company, if and to the
extent that the accounts of each such Restricted Subsidiary would normally be consolidated with those of the Company in accordance with generally accepted accounting principles;  provided, however, that "Consolidation" shall not include consolidation of the accounts of any
Unrestricted Subsidiary, but the interest of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary shall be accounted for as an investment. The term "Consolidated" has a correlative
meaning. 


        "Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business shall be
administered, which address as of the Closing Date is located at 700
South Flower Street, Suite 500, Los Angeles, CA 90017-4104, Attention: Corporate Trust Administration. 


        "Corporation" means a corporation, association, company, joint-stock company or business trust. 


        "Covenant Defeasance" has the meaning specified in Section 12.03. 



        "Credit Facility" means any credit facility (whether a term or revolving type or both, including New Credit Facility) or letter of credit
facility of the type customarily entered into with banks or Hedging Agreement (as defined), between the Company and/or any of its Restricted Subsidiaries, on the one hand, and any banks or other
lenders or affiliates thereof, on the other hand (and any renewals, refundings, extensions or replacements of any such credit facility), which credit facility is designated by the Company as a "Credit
Facility" for purposes of this Indenture and shall include all such credit facilities in existence on the Closing Date whether or not so designated. 



        "Debt" means (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money borrowed, including without limitation, in each case, premium, interest 



6







 




(including
interest accruing subsequent to the filing of, or which would have accrued but for the filing of, a petition for bankruptcy, whether or not such interest is an allowable claim in such
bankruptcy proceeding), fees and expenses relating thereto, (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets or businesses, (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of such Person, (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested in good faith), (v) every Capital Lease Obligation of such
Person, (vi) the maximum fixed redemption or repurchase price of Redeemable Stock of such Person at the time of determination plus accrued but unpaid dividends, (vii) every obligation of
such Person under interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements of such Person (collectively, "Hedging Agreements"), and (viii) every
obligation of the type referred to in clauses (i) through (vii) of another Person and all dividends of another Person the payment of which, in either case, such Person has Guaranteed or
is liable, directly or indirectly, as obligor, Guarantor or otherwise. The amount of Debt of any Person issued with original issue discount is the face amount of such Debt less the unamortized portion
of the original issue discount of such Debt at the time of its issuance as determined in conformity with generally accepted accounting principles, and money borrowed at the time of the Incurrence of
any Debt in order to pre-fund the payment of interest on such Debt shall be deemed not to be Debt. The amount of Debt represented by an obligation under an agreement referred to in
clause (vii) shall be equal to (x) zero if such obligation has been Incurred under clause (v)(B) of the definition of Permitted Debt and (y) the notional amount of such
obligation if it is not so Incurred. 


        "Default" means an event that is, or after notice or passage of time, or both, would be, an Event of Default. 


        "Default Amount" has the meaning specified in Section 5.02. 


        "Defaulted Interest" has the meaning specified in Section 3.09. 


        "Defeasance" has the meaning specified in Section 12.02. 


        "Depository" shall mean The Depository Trust Company, as nominees and their respective successors. 


        "Directed Investment" by the Company or any of its Restricted Subsidiaries means any Investment for which the cash or property used for
such Investment is received by the Company from the issuance and sale (other than to a Restricted Subsidiary) on or after February 24, 2000 of shares of its Capital Stock (other than any of the
Preferred Stock), or any options, warrants or other rights to purchase such Capital Stock (other than any of the Preferred Stock) designated by the Board of Directors as a "Directed Investment" to be
used for one or more specified investments in the telecommunications business (including related activities and services) and is so designated and used at any time within 365 days after the
receipt thereof; provided that the aggregate amount of any such Directed Investments may not at any time exceed fifty percent (50%) of the aggregate
amount of such cash or property received by the Company on or after the date hereof from any such issuance and sale or capital contribution; and provided
further that any proceeds from any such issuance or sale may not be used for such an Investment if such proceeds were, prior to being designated for use as a Directed
Investment, used to make a Restricted Payment. 


        "Disinterested Director" means, with respect to any proposed transaction between the Company and an Affiliate thereof, a member of the
Board of Directors who is not an officer or employee of 



7







 




the
Company, would not be a party to, or have a financial interest in, such transaction and is not an officer, director or employee of, and does not have a financial interest in, such Affiliate. For
purposes of this definition, no person would be deemed not to be a Disinterested Director solely because such person holds Capital Stock of the Company. 


        "Event of Default" has the meaning specified in Section 5.01. 


        "Exchange Securities" means the new securities of the Company containing terms substantially identical to the Securities initially issued
hereunder (except that such Securities shall have been registered under the Securities Act) that are issued and exchanged for the Securities pursuant to the Registration Rights Agreement. 


        "Exchange Act" refers to the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time. 


        "Expiration Date" has the meaning specified in the definition of Offer to Purchase. 


        "Fair Market Value" means, for purposes of clause (i) of Section 10.08, the price that would be paid in an arm's-length
transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Board of Directors,
whose determination shall be conclusive if evidenced by a Board Resolution; provided that (x) the Fair Market Value of any security registered
under the Exchange Act shall be the average of the closing prices, regular way, of such security for the 20 consecutive trading days immediately preceding the sale of Capital Stock and (y) in
the event the aggregate Fair Market Value of any other property received by the Company exceeds $10 million, the Fair Market Value of such property shall be determined in good faith by the
Board of Directors, including a majority of the Disinterested Directors who are then members of such Board of Directors, which determination shall be conclusive if evidenced by a Board Resolution. 


        "FCC" means the Federal Communications Commission. 


        "Global Securities" has the meaning provided in Section 2.01. 


        "Guarantee" by any Person means any obligation, contingent or otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, (i) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to the foregoing);  provided, however, that the Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business. 


        "Holder" means a Person in whose name a Security is registered in the Security Register. 


        "Incur" means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume (pursuant to a merger, consolidation, acquisition or other transaction), Guarantee or otherwise become liable in respect of such Debt or other obligation or the recording, as required pursuant
to generally accepted accounting principles or otherwise, of any such Debt or other obligation on the balance sheet of such Person (and "Incurrence" and "Incurred" shall have meanings correlative to
the foregoing); provided, however, that a change in generally accepted accounting principles that
results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt; provided further,  however,
that the accretion of original issue discount on Debt shall not be deemed 



8







 




to
be an Incurrence of Debt. Debt otherwise Incurred by a Person before it becomes a Subsidiary of the Company shall be deemed to have been Incurred at the time it becomes such a Subsidiary. 


        "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. 



        "Initial Securities" means the first $25.0 million aggregate principal amount at maturity of Securities issued under this Indenture
on the date hereof. 


        "Institutional Accredited Investor" means an institution that is an "accredited investor" as that term is defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act. 


        "Interest Payment Date" means the Stated Maturity of an installment of interest on the Securities. 



        "Investment" by any Person means any direct or indirect loan, advance or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise), or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Debt issued by, any other Person or the designation of a Subsidiary as an Unrestricted Subsidiary;  provided that a transaction will not be an Investment to
the extent it involves (i) the issuance or sale by the Company of its Capital Stock
(other than Redeemable Stock), including options, warrants or other rights to acquire such Capital Stock (other than Redeemable Stock), (ii) a transfer, assignment or contribution by the
Company of shares of Capital Stock (or any options, warrants or rights to acquire Capital Stock), or all
or substantially all of the assets of, any Unrestricted Subsidiary of the Company to another Unrestricted Subsidiary of the Company or (iii) extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in the ordinary course of business and consistent with their normal practice. 


        "Investment Grade" means a rating of at least BBB-, in the case of S&P, or Baa3, in the case of Moody's. 



        "Itemized Executive" means any of the following individuals: (i) John Chapple; (ii) John Thompson; (iii) David Aas;
(iv) Perry Satterlee; (v) Mark Fanning and (vi) Barry Rowan. 


        "License Exchange" means (A) any exchange of Licenses between the Company and Nextel Communications, Inc. or any Affiliates
of Nextel Communications, Inc., which the Board of Directors of the Company determines in good faith, on the date of such exchange, are, in the aggregate, of at least equivalent value;  provided,
however, that the aggregate value of all such balances exchanged pursuant to this
clause (A) shall not exceed $100.0 million, or (B) any transaction pursuant to which the Company transfers certain of its Licenses to Nextel Communications, Inc. or any
Affiliates of Nextel Communications, Inc. in exchange for Licenses from a third party, the purchase price for which was funded by Nextel or any Affiliates of Nextel Communications, Inc.;  provided, however that the aggregate value of all such Licenses exchanged pursuant to this
clause (B) shall not exceed $100.0 million. 


        "Licenses" means SMR licenses granted by the FCC that entitle the holder to use the radio channels covered thereby, subject to compliance
with FCC rules and regulations, in connection with its SMR business. 


        "Lien" means, with respect to any property or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing). 



9









  



        "Marketable Securities" means: 



        (1)   securities
either issued directly or fully guaranteed or insured by the government of the United States of America or any agency or instrumentality thereof having
maturities of not more than one year; 


        (2)   time
deposits and certificates of deposit, having maturities of not more than six months from the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million and having outstanding long-term debt rated A or better (or the equivalent thereof) by S&P or Aaa or better (or the equivalent thereof) by Moody's; 


        (3)   commercial
paper rated A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's, and in each case maturing within one
year; 


        (4)   repurchase
obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above; and 


        (5)   investments
in money market funds substantially all of whose assets comprise securities of the types described in clauses (1) through (4). 




        "Maturity", when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, offer to purchase or otherwise. 



        "Moody's" means Moody's Investors Service, Inc. or, if Moody's Investors Service, Inc. shall cease rating debt securities
having a maturity at original issuance of at least one year and such ratings business shall have been transferred to a successor Person, such successor Person;  provided, however, that if Moody's Investors Service, Inc. ceases rating debt securities having a
maturity at original issuance of at least one year and its ratings business with respect thereto shall not have been transferred to any successor Person, then "Moody's" shall mean any other national
recognized rating agency (other than S&P) that rates debt securities having a maturity at original issuance of at least one year and that shall have been designated by the Company by a written notice
given to the Trustee. 


        "Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (a) the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting, appraisal, investment banking fees, and sales and brokerage commissions), (b) any relocation expenses incurred as
a result thereof, (c) taxes paid or payable as a result thereof, (d) amounts required to be applied to the repayment of Debt secured by a Lien on the asset or assets that were the
subject of such Asset Sale, (e) amounts required to be paid in order to obtain a necessary consent to such Asset Sale, (f) distributions made to minority interest holders, based on their
pro rata ownership, in Subsidiaries or Permitted Joint Ventures of such Person as a result of an Asset Sale by such Subsidiaries or Permitted Joint Ventures, and (g) appropriate amounts to be
provided by such Person or any Subsidiary thereof, as the case may be, as a reserve in accordance with generally accepted accounting principles against any liabilities associated with such assets that
are subject thereof, as the case may be, after such Asset Sale, including liabilities under any indemnification obligations and severance and other employee termination costs associated with such
Asset Sale, in each case, as conclusively determined by the board of directors of such Person. 


        "New Credit Facility" means that certain credit agreement, dated as of December 19, 2003 by and among a subsidiary of the Company
and a syndicate of banks and other financial institutions led by J.P. Morgan Securities Inc., as joint lead arranger, Morgan Stanley Senior Funding, Inc., as 



10







 




joint
lead arranger and syndication agent and JPMorgan Chase Bank, as administrative agent, governing a $375.0 million term loan facility, a $100.0 million revolving credit facility and
an optional $200.0 incremental term loan facility, and Hedging Agreements with Persons that were lenders under the New Credit Facility (or were affiliates of such lenders) at the time such Hedging
Agreements were entered into, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as such credit agreement, Hedging Agreements
and/or related documents may be amended, restated, supplemented, renewed, replaced or otherwise modified from time to time whether or not with the same agent or lenders and irrespective of any changes
in the terms and conditions thereof. 


        "Non-U.S. Person" means a person who is not a "U.S. Person" (as defined in Regulation S). 


        "Notice of Default" means a written notice of the kind specified in Section 5.01(5). 


        "Offer" has the meaning specified in the definition of Offer to Purchase. 


        "Offering Memorandum" means the offering memorandum dated May 13, 2004 in connection with the offering of the Securities. 



        "Offer to Purchase" means a written offer (the "Offer") sent by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Offer offering to purchase the Securities at the purchase price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date (the "Expiration Date") of the Offer to Purchase which shall be, subject to any contrary requirements of applicable
law, not less than 30 days or more than 45 days after the date of such Offer and a settlement date (the "Purchase Date") for purchase of Securities within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the Offer shall be mailed by the Company or, at the Company's request, by the Trustee, in the name and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Subsidiaries which, at a minimum, shall include (i) the most recent annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the documents required to be filed with the Trustee pursuant to this Indenture (which requirements may be satisfied by delivery
of such documents together with the Offer), (ii) a description of material developments in the Company's business subsequent to the date of the latest of such financial statements referred to
in clause (i) (including a description of the events requiring the Company to make the Offer to Purchase), (iii) if required under applicable law,  pro forma financial information
concerning, among other things, the Offer to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to be included therein. The Offer shall contain all instructions and materials necessary to enable such Holders to tender
their Securities pursuant to the Offer to Purchase. The Offer shall also state: 



         (1)  the
section of this Indenture pursuant to which the Offer to Purchase is being made; 


         (2)  the
Expiration Date and the Purchase Date; 


         (3)  the
aggregate principal amount at Stated Maturity of the Outstanding Securities offered to be purchased by the Company pursuant to the Offer to Purchase (the "Purchase
Amount"); 


         (4)  the
purchase price to be paid by the Company for each $1,000 principal amount at Stated Maturity of Securities accepted for payment (as specified pursuant to this
Indenture) (the "Purchase Price"); 




11







 





         (5)  that
the Holder may tender all or any portion of the Securities registered in the name of such Holder and that any portion of Securities tendered must be tendered in an
integral multiple of $1,000 of principal amount at Stated Maturity; 


         (6)  the
place or places where the Securities are to be surrendered for tender pursuant to the Offer to Purchase; 


         (7)  that
interest, if any, on any Securities not tendered or tendered but not purchased by the Company pursuant to the Offer to Purchase will continue to accrue; 


         (8)  that
on the Purchase Date the Purchase Price will become due and payable upon each Security being accepted for payment pursuant to the Offer to Purchase; 



         (9)  that
each Holder electing to tender Securities pursuant to the Offer to Purchase will be required to surrender such Securities at the place or places the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing; 


       (10)  that
Holders will be entitled to withdraw all or any portion of the Securities tendered if the Company (or its Paying Agent) receives, not later than the close of
business on the Expiration Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount at Stated Maturity of the Securities the Holder tendered, the certificate
number of the Securities the Holder tendered and a statement that such Holder is withdrawing all or a portion of his tender; 


       (11)  that
the Company shall purchase all such Securities duly tendered and not withdrawn pursuant to the Offer to Purchase, and 


       (12)  that
in the case of any Holder whose Securities are purchased only in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Securities without service charge, new Securities of any authorized denomination as requested by such Holder, in an aggregate principal amount at Stated Maturity equal to and in exchange for the
unpurchased portion of the aggregate principal amount at Stated Maturity of the Securities so tendered. 




        Any
Offer to Purchase shall be governed by and effected in accordance with the Offer for such Offer to Purchase. 


        "Officers' Certificate" means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.17 shall be the principal executive, financial or accounting officer of the Company. 


        "Offshore Global Securities" has the meaning provided in Section 2.01. 


        "Offshore Physical Securities" has the meaning provided in Section 2.01. 


        "Operating Cash Flow" means, for any fiscal quarter, (i) the Company's Consolidated Net Income (Loss) plus depreciation,
amortization and other non-cash charges in respect thereof for such fiscal quarter, plus (ii) all amounts deducted in calculating Consolidated Net Income (Loss) for such fiscal
quarter in respect of Consolidated Interest Expense, and all income taxes, whether or not deferred, applicable to such income period, all as determined on a Consolidated basis in accordance with
generally accepted accounting principles. For purposes of calculating Operating Cash Flow for the fiscal quarter most recently completed for which financial statements are available prior to any date
on which an action is taken that requires a calculation of the Operating 



12







 




Cash
Flow to Consolidated Interest Expense Ratio or Consolidated Debt to Annualized Operating Cash Flow Ratio, (1) any Person that is a Restricted Subsidiary on such date (or would become a
Restricted Subsidiary in connection with the transaction that requires the determination of such ratio) will be deemed to have been a Restricted Subsidiary at all times during such fiscal quarter,
(2) any Person that is not a Restricted Subsidiary on such date (or would cease to be a Restricted Subsidiary in connection with the transaction that requires the determination of such ratio)
will be deemed not to have been a Restricted Subsidiary at any time during such fiscal quarter and (3) if the Company or any Restricted Subsidiary shall have in any manner acquired (including
through commencement of activities constituting such operating business) or disposed (including through termination or discontinuance of activities constituting such operating business) of any
operating business during or subsequent to the most recently completed fiscal quarter, such calculation will be made on a pro forma basis on the
assumption that such acquisition or disposition had been completed on the first day of such completed fiscal quarter and may give effect to projected quantifiable improvements in operating results (on
a annualized basis) due to cost reductions calculated in accordance with Regulation S-X of the Securities Act and evidenced by (A) in the case of cost reductions of less than
$10.0 million, an Officers' Certificate delivered to the Trustee and (B) in the case of cost reductions of $10.0 million or more, a resolution of the Board of Directors set forth
in an Officers' Certificate delivered to the Trustee. 


        "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company. 


        "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except: 



          (i)  Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation; 


         (ii)  Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;  provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; 


        (iii)  Securities
which have been paid pursuant to Section 3.08 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; and 


        (iv)  Securities
as to which Defeasance has been effected pursuant to Section 12.02; 




provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the 



13







 

pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. 


        "pari passu", when used with respect to the ranking of any Debt of any Person in relation to other Debt of such Person, means that each
such Debt (a) either (i) is not subordinated in right of payment to any other Debt of such Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not subordinate in right of payment to the other or to any Debt of such Person as to which the other is not so
subordinate. 


        "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company. 


        "Permitted Debt" means: 



          (i)  any
Debt (including Guarantees thereof) outstanding on the Closing Date (including the Securities issued on the Closing Date) and any accretion of original issue
discount and accrual of interest with respect to such Debt; 


         (ii)  any
additional Debt outstanding under a Credit Facility in aggregate principal amount at any one time outstanding under this clause (ii) not to exceed
$475.0 million in aggregate for all such Credit Facilities, less permanent repayments of Debt under such Credit Facilities made by the Company or
any of its Restricted Subsidiaries pursuant to Section 10.21; 


        (iii)  any
Vendor Financing Debt in an aggregate principal amount outstanding at any time not to exceed $100.0 million; 


        (iv)  Debt
(A) to the Company or (B) to any Restricted Subsidiary; provided that any event which results in any
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Debt (other than to the Company or another Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Debt not permitted by this clause (iv); 



         (v)  Debt
(A) in respect of performance, surety or appeal bonds or bankers' acceptances provided in the ordinary course of business, (B) under foreign currency
hedge, foreign currency exchange, interest rate swap or similar agreements; provided that such agreements (a) are designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Debt of the obligor outstanding at any time other
than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company
or any Restricted Subsidiary pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Debt
Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition; 


        (vi)  renewals,
refundings or extensions of any Debt referred to in clause (i) or (iii) above or (viii) below or Incurred pursuant to clause (b)
of Section 10.08 and any renewals, refundings or extensions thereof, plus (A) the amount of any premium reasonably determined by the Company as necessary to accomplish such renewal,
refunding or extension and (B) such 




14







 





other
fees and expenses of the Company reasonably incurred in connection with the renewal, refunding or extension, provided that such renewal, refunding
or extension shall constitute Permitted Debt only (a) to the extent that it does not result in an increase in the aggregate principal amount (or, if such Debt provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof, in an amount not greater than such lesser amount) of such Debt (except as permitted by
clause (A) or (B) above), and (b) to the extent such renewed, refunded or extended Debt does not have a mandatory redemption date prior to the mandatory redemption date of the
Debt being renewed, refunded or extended or have an Average Life shorter than the remaining Average Life of the Debt being renewed, refunded or extended; and 


       (vii)  Debt
payable solely in, or mandatorily convertible into, Capital Stock (other than Redeemable Stock) of the Company; 


      (viii)  all
Exchange Securities issued pursuant to the terms of the Registration Rights Agreement for the Securities; 



        (ix)  Debt
(in addition to Debt permitted under clauses (i) through (viii) above) in an aggregate principal amount outstanding at any time not to exceed
$50.0 million. 




        In
the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness specified in the above clauses (i) through (ix), the Company shall have
the right, at any time in its sole discretion, to classify such item as one of the types and shall only be required to include such item under the clause permitting such Indebtedness as so classified. 



        "Permitted Distribution" of a Person means (x) the exchange by such Person of Capital Stock (other than Redeemable Stock) for
outstanding Capital Stock; and (y) the redemption, repurchase, defeasance or other acquisition or retirement for value of Debt of the Company that is subordinate in right of payment to the
Securities, in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares
or scrip), or out of the proceeds of a substantially concurrent issue and sale (other than to a Restricted Subsidiary) of, either (a) Capital Stock of the Company (other than Redeemable Stock)
or (b) Debt of the Company that is subordinate in right of payment to the Securities on subordination terms no less favorable to the Holders of the Securities in their capacities as such than
the subordination terms (or other arrangement) applicable to the Debt that is redeemed, repurchased,
defeased or otherwise acquired or retired for value, provided that, in the case of this clause (b), such new Debt does not mature prior to the
Stated Maturity or have a mandatory redemption date prior to the mandatory redemption date of the Debt being redeemed, repurchased, defeased or otherwise acquired or retired for value or have an
Average Life shorter than the remaining Average Life of the Debt being redeemed, repurchased, defeased or otherwise acquired or retired for value. 



        "Permitted Holder" means each of (i) Nextel Communications, Inc. and any entity or entities controlled by, directly or
indirectly, Nextel Communications, Inc. (ii) Craig O. McCaw and any entity or entities (A) controlled, directly or indirectly, by Craig O. McCaw or the estate of Craig O. McCaw
and (B) a majority of the equity interest of which are owned directly or indirectly, by Craig O. McCaw and his family, his brothers and estates of, or trusts for the primary benefit of, the
foregoing persons, (iii) Motorola, Inc., and (iv) any "person" or "group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) controlled by one or more
persons identified in clauses (i) through (iii) of this definition. 


        "Permitted Investment" means any Investment in (i) Marketable Securities or (ii) a Permitted Joint Venture. 



15







 




        "Permitted Joint Venture" means any joint venture entered into by the Company or any of its Restricted Subsidiaries with a third party
(a) for the purpose of financing the acquisition or lease of telecommunications towers for use in the Company's markets; provided that the
aggregate value of all assets contributed by the Company or any of its Restricted Subsidiaries to any joint venture pursuant to this clause (a) shall not exceed $15.0 million (as
determined in good faith by the Board of Directors) or (b) in which the Company or any of its Restricted Subsidiaries (i) is responsible for the managerial control of such joint venture
and (ii) owns at least 40% of the outstanding Capital Stock of such joint venture; provided that such joint venture, together with all other
Permitted Joint Ventures described in this clause (b), does not cover or service more than 10% of the POPs (computed by including only a percentage of the total POPs equal to the Company's
percentage ownership in that joint venture) covered by the Company at the date of determination (as determined in good faith by the board of directors). 


        "Permitted Liens" means (i) Liens securing Debt or other monetary obligations under a Credit Facility to the extent the principal
amount of such obligations is permitted by the terms of this Indenture to be incurred; (ii) Liens in favor of the Company or a Wholly Owned Restricted Subsidiary; (iii) Liens on property
of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company; (iv) Liens on property existing at the
time of acquisition thereof by the Company or any Subsidiary of the Company, provided that such Liens were in existence prior to the contemplation of such acquisition; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (vi) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (iii) of the definition of "Permitted Debt";
(vii) Liens on the date hereof; (viii) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any reserve or other appropriate provision as shall be required in conformity with generally accepted account principles shall
have been made therefor; (ix) Liens (including zoning restrictions, servitudes, easements and rights-of-way) incurred in the ordinary course of business of the Company
or any Subsidiary of the Company that (a) are not incurred in connection with the borrowing of money or the obtaining of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of the property or materially impair the use thereof in the operation of business by the Company or such Subsidiary;
(x) Liens of a lessor under a lease (other than a capitalized lease); (xi) Liens not otherwise permitted by the foregoing clauses (i) through (vii) securing Debt in an
aggregate amount not to exceed 5% of the Company's consolidated tangible assets; and (xii) Liens to secure Debt incurred to refinance, in whole or in part, Debt secured by any Lien referred to
in the foregoing clauses (i), (iii), (iv), (v) or this clause (xii) so long as such Lien does not extend to any other property (other than improvements and accessions to the original
property) and the principal amount of Debt so secured is not increased except as otherwise permitted by this Indenture. 


        "Permitted Transaction" means (i) any written agreements existing on the Closing Date and described in or incorporated by reference
into the Offering Memorandum and (ii) any transaction or transactions with any vendor or vendors (other than Motorola, Inc.) of property or materials used in the telecommunications
business (including related activities and services) of the Company or any Restricted Subsidiary, provided (x) such transactions are in the
ordinary course of business and (y) such vendor does not beneficially own more than 10% of the voting power of the Voting Stock of the Company, (iii) any amendment, modification or other
change to the purchase agreement between the Company and Motorola, Inc., dated as of January 29, 1999 and as amended on September 9, 1999, or any other similar agreement with
Motorola, Inc. that has been 



16







 




approved
by a majority of the Disinterested Directors of the Company, (iv) agreements and transactions contemplated by the joint venture agreement entered into by and among the Company and
Nextel Communications, Inc. and their respective Subsidiaries as of January 29, 1999, as amended, (v) any License Exchange and (vi) any issuance of equity by the Company
(other than Redeemable Stock). 


        "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or
political subdivision thereof. 


        "POP" means the population equivalents as estimated by the Company by extrapolation from the 1990 or 2000 U.S. Census and other publicly
available information. 


        "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.08 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security. 


        "Preferred Capital Stock" as applied to the Capital Stock of any Person, means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person. 


        "Preferred Stock" means the Company's Series B Redeemable Preferred Stock. 


        "Private Placement Legend" means the legend initially set forth on the Securities in the form set forth in Section 2.05. 


        "Purchase Amount" has the meaning specified in the definition of Offer to Purchase. 


        "Purchase Date" has the meaning specified in the definition of Offer to Purchase. 


        "Purchase Price" has the meaning specified in the definition of Offer to Purchase. 


        "QIB" means a "qualified institutional buyer" as defined in Rule 144A. 


        "Record Expiration Date" has the meaning specified in Section 1.04. 



        "Redeemable Stock" of any Person means any Capital Stock of such Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Securities, (ii) redeemable at the option of the holder thereof at any time prior to the Stated Maturity of the Securities or
(iii) convertible into or exchangeable for Capital Stock referred to in clause (i) or (ii) above or Debt having a scheduled maturity prior to the Stated Maturity of the
Securities; provided that any Capital Stock that would not constitute Redeemable Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of a "change of control" occurring prior to the Stated Maturity of the Securities shall not constitute Redeemable
Stock if the "change of control" provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Section 10.13 and such
Capital Stock specifically provides that such Person will not repurchase or redeem any such stock
pursuant to such provision prior to the Company's repurchase of such Securities as are required to be repurchased pursuant to Section 10.13. 


        "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture. 



17







 




        "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture. 


        "Registration Rights Agreement" means the Registration Rights Agreement dated the Closing Date, among the Company, Morgan Stanley &
Co. Incorporated, J.P. Morgan Securities Inc., UBS Securities LLC, and Wachovia Capital Markets, LLC, as such agreement may be amended, modified or supplemented from time to time and, with
respect to any Additional Securities, one or more registration rights agreements among the Company and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from
time to time, relating to rights given by the Company to the purchasers of Additional Securities to register such Additional Securities under the Securities Act. 


        "Registration Statement" means the Registration Statement as defined and described in the Registration Rights Agreement. 


        "Regular Record Date" for the interest payable on any Interest Payment Date means December 15 or June 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. 


        "Regulation S" means Regulation S under the Securities Act. 


        "Required Consent" means, except as otherwise expressly provided in this Indenture with respect to matters requiring the consent of each
holder of Securities affected thereby, the consent of holders of not less than a majority in aggregate principal amount at Stated Maturity of the Outstanding Securities, including, without limitation,
Additional Securities, if any. 


        "Responsible Officer" when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee
(or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. 


        "Restricted Payments" has the meaning specified in Section 10.09. 



        "Restricted Subsidiary" means any Subsidiary of the Company, whether existing on the Closing Date or created subsequent thereto,
designated from time to time by the Board of Directors as (or otherwise deemed to be) a "Restricted Subsidiary" in accordance with Section 10.10. 


        "Rule 144A" means Rule 144A under the Securities Act. 


        "S&P" means Standard & Poor's Ratings Services or, if Standard & Poor's Ratings Services shall cease rating debt securities
having a maturity at original issuance of at least one year and such ratings business shall have been transferred to a successor Person, such successor Person;  provided, however, that if Standard & Poor's Ratings Services ceases rating debt securities
having a maturity at original issuance of at least one year and its ratings business with respect thereto shall not have been transferred to any successor Person, then "S&P" shall mean any other
nationally recognized rating agency (other than Moody's) that rates debt securities having a maturity at original issuance of at least one year and that shall have been designated by the Company by a
written notice given to the Trustee. 


        "Securities" means securities designated in the first paragraph of the RECITALS OF THE COMPANY of this Indenture. The Initial Securities
and the Additional Securities shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial
Securities and any Additional Securities. 


        "Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time. 



18









  



        "Security Register" and "Security Registrar" have the respective meanings specified in Section 3.05. 


        "Shelf Registration Statement" means the Shelf Registration Statement as defined in the Registration Rights Agreement. 



        "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.09. 


        "Specialized Mobile Radio" or "SMR" means a mobile radio communications system that is operated as described in the Offering Memorandum. 


        "Stated Maturity" when used with respect to any Debt security or any installment of interest thereon, means the date specified in such
Debt security as the fixed date on which the principal of such Debt security or such installment of interest is due and payable. 



        "Subsidiary" of any Person means (i) a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation) in
which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof. 


        "Total Common Equity" of any Person means, as of any day of determination (and as modified for purposes of the definition of "Change of
Control"), the product of (i) the aggregate number of outstanding primary shares of Common Stock of such Person on such day (which shall not include any options or warrants on, or securities
convertible or exchangeable into, shares of Common Stock of such Person) and (ii) the average Closing Price of such Common Stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class, the value of such shares for purposes of clause (ii) of the preceding sentence shall be determined by the Board of
Directors in good faith and evidenced by a Board Resolution. 


        "Total Invested Capital" means at any time of determination, the sum of, without duplication, (i) the total amount of equity
contributed to the Company as of January 29, 1999 (being $183.2 million), plus (ii) the aggregate net cash proceeds received by the
Company from capital contributions or the issuance or sale of Capital Stock (other than Redeemable Stock but including Capital Stock issued upon the conversion of convertible Debt or from the exercise
of options, warrants or rights to purchase Capital Stock (other than Redeemable Stock)), including cash payments under the Committed Capital Contribution, subsequent to January 29, 1999, other
than to a Restricted Subsidiary, plus (iii) the aggregate net cash proceeds received by the Company or any Restricted Subsidiary from the sale,
disposition or repayment of any Investment made after January 29, 1999 and constituting a Restricted Payment in an amount equal to the lesser of (a) the return of capital with respect to
such Investment and (b) the initial amount of such Investment, in either case, less the cost of the disposition of such Investment, plus
(iv) an amount equal to the Consolidated net Investment (as of the date of determination) the Company and/or any of the Restricted Subsidiaries has made in any Subsidiary that has been
designated as an Unrestricted Subsidiary after January 29, 1999 upon its redesignation as a Restricted Subsidiary in accordance with Section 10.10,  plus (v) Consolidated Debt minus (vi) the aggregate amount of all Restricted Payments
declared or made on or after January 29, 1999. 


        "Trading Day" with respect to a securities exchange or automated quotation system means a day on which such exchange or system is open for
a full day of trading. 



19







 




        "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. 


        "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;  provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. 


        "U.S. Global Securities" has the meaning provided in Section 2.01. 


        "U.S. Government Obligation" has the meaning specified in Section 12.04. 


        "U.S. Physical Securities" has the meaning provided in Section 2.01. 



        "Unrestricted Subsidiary" means any Subsidiary that is not a Restricted Subsidiary and includes any Restricted Subsidiary that becomes an
Unrestricted Subsidiary in accordance with Section 10.10. 


        "Vendor Financing Debt" means any Debt owed to (i) a vendor or supplier of any property or materials used by the Company or its
Restricted Subsidiaries in their telecommunications business, (ii) any Affiliate of such a vendor or supplier, (iii) any assignee of such a vendor, supplier or Affiliate of such a vendor
or supplier, or (iv) a bank or other financial institution that has financed or refinanced the purchase of such property or materials from such a vendor, supplier, Affiliate of such a vendor or
supplier or assignee of such a vendor or supplier; provided that the aggregate amount of such Debt does not exceed the sum of (w) the purchase
price of such property or materials (including transportation, installation, warranty and testing charges, as well as applicable taxes paid, in respect of such property or materials), (x) the
cost of design, development, site acquisition and construction, (y) any interest or other financing costs accruing or otherwise payable in respect of the foregoing, and (z) the cost of
any services provided by such vendor, supplier or Affiliate of such vendor or supplier. 



        "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president". 


        "Voting Stock" of any Person means Capital Stock of such Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency. 



        "Wholly Owned Restricted Subsidiary" of the Company means a Restricted Subsidiary all of the outstanding Capital Stock of which (other
than directors' qualifying shares) shall at the time be owned by the Company or by one or more Wholly Owned Restricted Subsidiaries or by the Company and one or more Wholly Owned Restricted
Subsidiaries of the Company. 




Section 1.02.    Compliance Certificates and Opinions.    


        Upon
any application or request by the Company to the Trustee to take any action under any provision of this Indenture (except, for any actions in connection with the original issuance
of Securities hereunder), the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture. 


20







 



        Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include 



        (1)   a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; 


        (2)   a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; 


        (3)   a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and 


        (4)   a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 




Section 1.03.    Form of Documents Delivered to Trustee.    


        In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. 


        Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are erroneous. 


        Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they
may, but need not, be consolidated and form one instrument. 


Section 1.04.    Acts of Holders; Record Dates.    



        Any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. 


        The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is
by a signer 


21







 



acting
in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. 


        The
ownership of Securities shall be proved by the Security Register. 


        Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security. 


        The
Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to give or take any request, demand, authorization, direction,
notice,
consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities, provided that the Company may not
set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable
Record Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date; and provided,  further, that for the
purpose of determining whether Holders of the requisite principal amount of such Securities have taken such action, no Security
shall be deemed to have been Outstanding on such record date unless it is also Outstanding on the date such action is to become effective. Nothing in this paragraph shall prevent the Company from
setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by
any Person be canceled and of no effect), nor shall anything in this paragraph be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Record Expiration Date to be given to the Trustee in writing and to each Holder of Securities in the manner set forth in Section 1.06. 



        The
Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2), (iv) any
direction referred to in Section 5.12 or (v) the Required Consent. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;  provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Record Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date; and provided, further, that for the
purpose of determining whether Holders of the requisite principal amount of such Securities have taken such action, no Security shall be deemed to have been Outstanding on such record date unless it
is also Outstanding on the date such action is to become effective. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action (whereupon the
record date previously set shall automatically and without any action by any Person be canceled and of no effect), nor shall anything in this paragraph be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the
Company's 


22







 



expense,
shall cause notice of such record date, the matter(s) to be submitted for potential action by Holders and the applicable Record Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section 1.06. 


        With
respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the "Record Expiration Date" and from time to time may
change the Record Expiration Date to any earlier or later day, provided that no such change shall be effective unless notice
of the proposed new Record Expiration Date is given to the other party hereto in writing, and to each Holder of Securities in the manner set forth in Section 1.06, on or before the existing
Record Expiration Date. If a Record Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have
initially designated the 180th day after such record date as the Record Expiration Date with respect thereto, subject to its right to change the Record Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Record Expiration Date shall be later than the 180th day after the applicable record date. 



        Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. 


Section 1.05.    Notices, Etc., to Trustee and Company.    


        Any
request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with, 



        (1)   the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing and mailed, first-class postage
prepaid, to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or 


        (2)   the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company. 




Section 1.06.    Notice to Holders; Waiver.    


        Where
this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. 


        In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. 


23







 



Section 1.07.    Conflict with Trust Indenture Act.    


        If
any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be. 


Section 1.08.    Effect of Headings and Table of Contents.    


        The
Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. 


Section 1.09.    Successors and Assigns.    


        All
covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. 


Section 1.10.    Separability Clause.    


        In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. 


Section 1.11.    Benefits of Indenture.    


        Nothing
in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this Indenture. 


Section 1.12.    Governing Law.    



        This
Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. 


Section 1.13.    Legal Holidays.    


        In
any case where any Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day with the same force and
effect (including with respect to the accrual of interest) as if made on the Interest Payment Date, Redemption Date or Purchase Date, or at the Stated Maturity. 


Section 1.14.    No Recourse Against Others.    


        No
recourse for the payment of the principal of, premium, if any, or interest on any of the Securities, or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company contained in this Indenture, or in any of the Securities, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator or against any past, present or future partner, shareholder, other equity holder, officer, director, employee or controlling person, as such, of the Company or of any
successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of
the Securities. 


24







 


ARTICLE 2.  


 Security Forms  


Section 2.01.    Forms Generally.    


        The
Securities and the Trustee's certificates of authentication shall be in substantially the forms set forth in this Article, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. 



        Securities
offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more permanent global Securities in registered form, substantially in the form
set forth in Section 2.02 (the "U.S. Global Securities"), deposited with the Trustee, as custodian for the Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the U.S. Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee as custodian for
the Depository or its nominee, as hereinafter provided. 


        Securities
offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of one or more permanent global Securities in registered
form substantially in the form set forth in Section 2.02 (the "Offshore Global Securities") deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Offshore Global Securities may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary, as hereinafter provided. 


        The
Offshore Physical Securities and U.S. Physical Securities are sometimes collectively herein referred to as the "Physical Securities." The U.S. Global Securities and the Offshore
Global Securities are sometimes collectively herein referred to as the "Global Securities." 



        Securities
offered and sold in reliance on Regulation D under the Securities Act shall be issued in the form of permanent certificated Securities in registered form in
substantially the form set forth in Section 2.02 (the "U.S. Physical Securities"). Securities issued pursuant to Section 3.07 in exchange for
interests in the Global Securities shall be in the form of permanent certificated Securities in registered form substantially in the form set forth in Section 2.02 (the "Offshore Physical
Securities"). 


        The
definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such
Securities. 


25









  





Section 2.02.    Form of Face of Security.    


 
 

Nextel Partners, Inc.
  8 1/8% Senior Notes due 2011    
    



	No.                         	 	$                         
	 	 	CUSIP NO.                         
	 	 	ISIN NO.                         





        Nextel
Partners, Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby promises to pay to                        , or registered
assigns, the principal amount of                         Dollars on
July 1, 2011 and to pay cash interest thereon from                        or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
January 1 and July 1 in each year, commencing                        at the rate of 8 1/8% per annum, until the
principal hereof is paid or duly provided for,  provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of 9 1/8% per
annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or duly provided for, and such interest shall be payable
on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the December 15 or June 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. 


        In
accordance with the terms of the Registration Rights Agreement (i) if the Company fails to file an Exchange Offer Registration Statement with the Commission on or prior to
                        , (ii) if the Exchange Offer Registration Statement is not declared effective by the Commission on or
prior to                        , (iii) if the Exchange Offer is not
consummated on or before the 30th business day after the Exchange Offer Registration Statement is declared effective, (iv) if obligated to file the Shelf Registration Statement and the Company
fails to file the Shelf Registration Statement with the Commission on or prior to the 60th day after such filing obligation arises, (v) if obligated to file a Shelf Registration
Statement and the Shelf Registration Statement is not declared effective on or prior to the 90th day after the obligation to file a Shelf Registration Statement arises, or (vi) if the
Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, is declared effective but thereafter ceases to be effective or useable in connection with resales of the
Transfer Restricted Securities, for such time of non-effectiveness or non-usability (each, a "Registration Default"), the Company agrees to pay to each Holder of Transfer
Restricted Securities affected thereby additional interest ("Additional Interest") in an amount equal to $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default continues for the first 90 day period immediately following the occurrence of such Registration Default. The amount of
Additional Interest shall increase by an additional $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities with respect to each subsequent 90 day period until all
Registration Defaults have been cured, up to a maximum amount of Additional Interest 


26







 



of
$0.50 per week per $1,000 in principal amount of Transfer Restricted Securities. The Company shall not be required to pay Additional Interest for more than one Registration Default at any given
time. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease. 


        All
accrued Additional Interest shall be paid by the Company to Holders entitled thereto by wire transfer to the accounts specified by them or by mailing checks to their registered
address if no such accounts have been specified. 


        The
Holder of this Security is entitled to the benefits of such Registration Rights Agreement. 



        Payment
of the principal of (and premium, if any) and any interest on this Security will be made at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;  provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. 


        Nextel
Partners, Inc. promises to pay to                        or registered assigns, the principal amount at maturity
of                         Dollars on July 1, 2011.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. 


Interest
Payment Dates:  January 1 and July 1, commencing                        . 


Record
Dates:  December 15 and June 15. 


        Unless
the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose. 


        IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. 



	 	 	NEXTEL PARTNERS, INC.
	

 	
 	

By:	

  
 Name:

Title:




27









  





Section 2.03.    Form of Reverse of Security.    



        This
Security is one of a duly authorized issue of Securities of the Company designated as its Senior Notes due 2011 (herein called the "Securities"), issued and to be issued under an
Indenture, dated as of May 19, 2004 (herein called the "Indenture", which term shall have the meaning assigned to it in such instrument), between the Company and BNY Western Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. 


        The
Securities may be redeemed at any time on or after July 1, 2007, at the Company's option, in whole or in part, upon not less than 30 nor more than 60 days' prior
written notice mailed by first class mail to each Holder's last address as it appears in the Security Register, at the Redemption Prices (expressed as a percentage of the principal amount at maturity
thereof) set forth below, plus an amount in cash equal to all accrued and unpaid interest and Additional Interest, if any, to the Redemption Date, if redeemed during the twelve-month period beginning
July 1 of each of the years set forth below. 



	Year
 
	 	Percentage
	 
	2007	 	104.063	%
	2008	 	102.031	%
	2009 and thereafter	 	100.000	%






        In
addition, in the event that the Company receives net proceeds from one or more sales of its Capital Stock (other than Redeemable Stock) prior to July 1, 2006, the Company may
redeem up to 35% of the aggregate principal amount of the Securities originally issued with the proceeds of such sale at a Redemption Price equal to 108.125% of such principal amount on the Redemption
Date, plus accrued and unpaid interest and Additional Interest, if any thereon, to the Redemption Date; provided that at least 65% of the aggregate principal amount of the Securities issued remain
outstanding immediately after the occurrence of any such redemption (excluding Securities held by the Company and its Restricted Subsidiaries); and provided, further, that such redemption occurs
within 60 days after consummation of any such sale. 


        The
Securities do not have the benefit of any sinking fund obligations. 


        In
the event of redemption, or purchase pursuant to an Offer to Purchase, of this Security in part only, a new Security or Securities for the unredeemed or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof. 



        The
Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the Indenture. 


        If
an Event of Default shall occur and be continuing, there may be declared due and payable the Default Amount of the Securities, in the manner and with the effect provided in the
Indenture. The Default Amount in respect of this Security as of any particular date shall equal 100% of the principal amount payable in respect of this Security at the Stated Maturity hereof. Upon
payment of (i) the Default Amount so declared due and payable and any overdue installment of interest in respect of this Security, (ii) any overdue principal or premium payable on
redemption or repurchase of this Security and (iii) as provided on the face hereof, any interest on any overdue Default Amount, principal, premium or interest in respect of this Security (to
the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and any premium and interest on this Security
shall terminate. 


28







 



        The
Indenture provides that, subject to certain conditions, if a Change of Control occurs, the Company shall be required to make an Offer to Purchase for all of the Securities. 



        Unless
the context otherwise requires, references herein to the principal amount of any Security mean, as of any day, (i) with respect to any portion thereof required hereunder to
be redeemed or
repurchased on any redemption or repurchase date on or prior to such day, the amount due and payable in respect of such portion upon such redemption or repurchase date (excluding premium and
interest), (ii) with respect to any portion thereof not required to be so redeemed or repurchased, but which has been declared due and payable prior to the Stated Maturity thereof as provided
in the Indenture, the Default Amount in respect of such portion as of such day and (iii) with respect to any portion thereof not required so to be redeemed or repurchased and not so declared
due and payable, such portion of the principal amount of such Security payable at Stated Maturity thereof. 



        The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders
of the Securities under the Indenture at any time by the Company and the Trustee after having received the Required Consent (defined as follows). The Indenture also contains provisions permitting
those Persons giving the Required Consent, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. 


        As
used herein, "Required Consent" means, except as otherwise expressly provided in the Indenture with respect to matters requiring the consent of each holder of the Securities affected
thereby, the consent of holders of not less than a majority in aggregate principal amount at Stated Maturity of the Outstanding Securities, including, without limitation, Additional Securities, if
any. 


        As
provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than a majority in principal amount at Stated Maturity of the Securities at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee and the Trustee shall not have received from the Holders of a majority in
principal amount at Stated Maturity of Securities at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, within 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to certain suits described in the Indenture, including any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein (or, in the case of redemption, on or after the
Redemption Date or, in the case of any purchase of this Security required to be made pursuant to an Offer to Purchase, on or after the Purchase Date.) 


        No
reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. 



        As
provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the 


29







 


Company
and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or transferees. 


        The
Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same. 


        No
service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. 


        Prior
to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary. 


        Interest
on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. 


        All
terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. 


        The
Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. 


30







 
 
 

[FORM OF TRANSFER NOTICE]    
    


        FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto 



	Insert Taxpayer Identification No.
	

  
 Please print or typewrite name and address including zip code of assignee
	

  
 the within Note and all rights thereunder, hereby irrevocably constituting and appointing
                                         
                  attorney to transfer said Security on the books of the Company with full power of substitution in the premises.




 
 

[THE FOLLOWING PROVISION TO BE INCLUDED
  ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES
  AND UNLEGENDED OFFSHORE PHYSICAL AND GLOBAL SECURITIES]    
    


        In connection with any transfer of this Security occurring prior to the date which is the earlier of (i) the date the Shelf Registration Statement with
respect to resales of the Securities is declared effective or (ii) the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without
utilizing any general solicitation or general advertising that: 


[Check
One] 


	o
	(a)  this
 Security is being transferred in compliance with the exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.



	o
	(b)  this
 Security is being transferred other than in accordance with (a) above and documents are being furnished which
comply with the conditions of transfer set forth in this Security and the Indenture. 



If none of the foregoing boxes is checked, the Trustee shall not be obligated to register this Security in the name of any Person other than the Holder hereof unless and until
the conditions to any such transfer of registration set forth herein and in Section 3.07 of the Indenture shall have been satisfied. 



	Date:	  
	 	  
 NOTICE:  The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.




31







 

TO
BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED. 


        The
undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it
and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. 



	Date:	  
	 	  
 NOTICE:  To be executed by an executive officer.




 
 

OPTION OF HOLDER TO ELECT PURCHASE    
    


        If you want to elect to have this Security purchased in its entirety by the Company pursuant to Section 10.13 or 10.21 of the Indenture, check the
appropriate box: 


o 10.13                             o 10.21



        If you want to elect to have only a part of the principal amount at Stated Maturity of this Security purchased by the Company pursuant to Section 10.13 or
10.21 of the Indenture, state the portion of such amount: $ 



	Dated:	  
	 	Your Signature:	  
 (Sign exactly as name appears on the other side of this Security)





	

Signature Guarantee:	

  






(Signature
must be guaranteed by a financial institution that is a member of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock Exchange Medallion Program ("SEMP"), the New York
Stock Exchange, Inc. Medallion Signature Program ("MSP") or such other signature guarantee program as may be determined by the Security Registrar in addition to, or in substitution for, STAMP,
SEMP or MSP, all in accordance with the Securities Exchange Act of 1934, as amended.) 


32









   
Section 2.04.    Form of Trustee's Certificate of Authentication.    


Dated:



        This
is one of the Securities referred to in the within-mentioned Indenture. 



	 	 	BNY Western Trust Company,

as Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	Authorized Signatory





Section 2.05.    Restrictive Legends.    


        Unless
and until a Security is exchanged for an Exchange Security or sold in connection with an effective Shelf Registration Statement pursuant to the Registration Rights Agreement,
(i) each U.S. Global Security and each U.S. Physical Security shall bear the legend set forth below on the reverse thereof and (ii) each Offshore Physical Security and each Offshore
Global Security shall bear the legend set forth below on the reverse thereof, until at least the 41st day after the Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit A hereto: 



        "THIS
NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: 



	(1)
	REPRESENTS
THAT, IF IT PURCHASED THIS NOTE DIRECTLY FROM AN INITIAL PURCHASER IN AN EXEMPT RESALE, (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (A "QIB") OR (ii) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT;



	(2)
	AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN A OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)
(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF NOTES LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR 




33







 



(G) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND 



	(3)
	AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. 







        Each
Global Security, whether or not an Exchange Security, shall also bear the following legend on the reverse thereof: 



        UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER. PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. 


        TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.07 OF THE INDENTURE. 



ARTICLE 3.  


 THE SECURITIES  


Section 3.01.    Title and Terms.    


        The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Section 3.04, 3.05, 3.08, 9.06 or 11.08 or in connection with an Offer to Purchase pursuant to
Section 10.13. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security will be dated the date of its authentication. The
Securities shall be in denominations of $1,000 and integral multiples thereof. 


        The
terms and provisions contained in the Securities will constitute, and are hereby expressly made, a part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Security conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling. 



        The
Securities shall be known and designated as the "Senior Notes due 2011" of the Company. Their Stated Maturity shall be July 1, 2011 and they shall bear cash interest at the
rate of 8 1/8% per 


34







 



annum,
from the Closing Date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable semi-annually on
January 1 and July 1, commencing July 1, 2004 until the principal thereof is paid or made available for payment. 



        The
principal of (and premium, if any) and interest on the Securities shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York maintained
for such purpose and at any other office or agency maintained by the Company for such purpose; provided,  however, that at the option of the Company,
payment of interest may be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. 


        The
Company may be required to make an Offer to Purchase the Securities as provided in Section 10.13. 


        The
Securities shall be redeemable as provided in Article 2 and Article 11. 


        The
Securities shall be subject to Defeasance and/or Covenant Defeasance as provided in Article 12. 


Section 3.02.    Denominations.    


        The
Securities shall be issuable only in registered form without coupons and only in denominations of $1,000 principal amount and any integral multiple thereof. 



Section 3.03.    Execution, Authentication, Delivery and Dating.    


        The
Securities shall be executed on behalf of the Company by its Chairman of the Board, its President or one of its Vice Presidents. The signature of any of these officers on the
Securities may be manual or facsimile. 


        Securities
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. 



        At
any time and from time to time after the execution and delivery of this Indenture, the Trustee will, upon receipt of a written order of the Company signed by an officer of the Company
(an "Authentication Order"), authenticate Securities for original issue that may be validly issued under this Indenture, including any Additional
Securities, up to an aggregate principal amount set forth in such Authentication Order. The aggregate principal amount of Securities outstanding at any time may not exceed the aggregate amount of
Securities authenticated for original issue pursuant to one or more Authentication Orders issued by the Company except as provided in Section 3.08 hereof. 


        Each
Security shall be dated the date of its authentication. 


        No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. 


Section 3.04.    Temporary Securities.    


        Pending
the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. 


35







 



        If
temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at any office or agency of the Company designated pursuant to Section 10.02, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations and of a like tenor. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities. 


Section 3.05.    Registration, Registration of Transfer and Exchange.    



        The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant
to Section 10.02 being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein
provided. 


        Upon
surrender for registration of transfer of any Security at an office or agency of the Company designated pursuant to Section 10.02 for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal
amount and tenor. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Security
Registrar in the Security Register. Prior to the registration of any transfer by a Holder as provided herein, the Company, the Trustee and any agent of the Company shall treat the person in whose name
the Security is registered as the owner thereof for all purposes whether or not the Security shall be overdue, and neither the Company, the Trustee, nor any such agent shall be affected by notice to
the contrary. Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only
through a book entry system maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial interest in the Security shall be required to be reflected in a book
entry. 


        At
the option of the Holder, Securities may be exchanged for other Securities (including an exchange of securities for Exchange Securities) of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency provided, that no exchange of Securities
for Exchange Securities shall occur until a Registration Statement shall have been declared effective by the Commission and that Securities that are exchanged for Exchange Securities pursuant to such
Registration Statement shall be canceled by the Trustee. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. 


        All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. 


        Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. 


        No
service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that 


36







 



may
be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.08 or in accordance with any Offer to
Purchase pursuant to Section 10.13, and in any such case not involving any transfer. 


        The
Company shall not be required (i) to issue, register the transfer of or exchange any Security during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities selected for redemption under Section 11.04 and ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. 



Section 3.06.    Book-Entry Provisions for Global Security.    


        (a)   The
Global Security initially shall (i) be registered in the name of the Depository for such Global Security or the nominee of such Depository; (ii) be
delivered to the Trustee as custodian for such Depository; and (iii) bear legends as set forth in Section 2.05. 


        Members
of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depository, or
the Trustee as its custodian, or under the Global Security and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Security. 


        (b)   Transfers
of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred in accordance with the rules and procedures of the Depository and the provisions of Section 3.07. In addition,
U.S. Physical Securities and Offshore Physical Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in the U.S. Global Securities or Offshore Global
Securities, respectively, if (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for the U.S. Global Securities or Offshore Global Securities, as
the case may be, and a successor depository is not appointed by the Company within 90 days of such notice, (ii) an Event of Default has occurred and is continuing and the Security
Registrar has received a request therefor from the Depository or (iii) in accordance with the rules and procedures of the Depository and the provisions of Section 3.07. 



        (c)   In
connection with any transfer of a portion of the beneficial interests in the Global Security to beneficial owners pursuant to paragraph (b) of this Section,
the Security Registrar shall reflect on the Security Register the date and a decrease in the principal amount of the Global Security in an amount equal to the principal amount of the beneficial
interest in the Global Security to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and amount. 


        (d)   In
connection with the transfer of an entire U.S. Global Security or Offshore Global Security to beneficial owners pursuant to paragraph (b) of this Section, such
U.S. Global Security or Offshore Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its beneficial interest in such U.S. Global Security or Offshore Global Security, as the case may be, an equal aggregate principal
amount of U.S. Physical Securities or Offshore Physical Securities of authorized denominations. 


37







 



        (e)   Any
Physical Security delivered in exchange for an interest in the Global Security pursuant to paragraph (b), (c) or (d) of this Section shall,
except as otherwise provided by paragraph (d) of Section 3.07 bear the legend regarding transfer restrictions applicable to the Physical Securities set forth in Section 2.05. 


        (f)    The
registered holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities. 


Section 3.07.    Special Transfer Provisions.    


        Unless
and until a Security is exchanged for an Exchange Security or sold in connection with an effective Shelf Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply: 



        (a)    Transfers to QIBs.    The following provisions shall apply with respect to the registration of any proposed
transfer of a Physical Security or an interest in the Global Security prior to the removal of the Private Placement Legend to a QIB (excluding Non-U.S. Persons): 



        (i)    If
the Security to be transferred consists of (x) (A) U.S. Physical Securities or (B) an interest in an Offshore Global Security prior to the removal of
the Private Placement Legend, the Security Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of security
stating, or has otherwise advised the Company and the Security Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A, to a transferee who has signed
the certification provided for on the form of Security stating, or has otherwise advised the Company and the Security Registrar in writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A or (y) an
interest in a U.S. Global Security, the transfer of such interest may be effected only through the book entry system maintained by the Depository. 



        (ii)   If
the proposed transferee is an Agent Member, and the Security to be transferred consists of U.S. Physical Securities, upon receipt by the Security Registrar of the
documents referred to in clause (i) and instructions given in accordance with the Depository's and the Security Registrar's procedures, the Security Registrar shall reflect in the Security
Register the date and an increase in the principal amount at maturity of the U.S. Global Security in an amount equal to the principal amount at maturity of the U.S. Physical Securities to be
transferred, and the Trustee shall cancel the U.S. Physical Securities so transferred. 




        (b)    Transfers to Non-QIB Institutional Accredited Investors.    The following provisions shall apply
with respect to the registration of any proposed transfer of a Security to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons): 



        (i)    The
Security Registrar shall register the transfer of any Security, whether or not such Security bears the Private Placement Legend, if (x) the requested transfer
is after the time period referred to in Rule 144(k) under the Securities Act as in effect with respect to such transfer or (y) the proposed transferee has delivered to the Security
Registrar (A) a certificate substantially in the form of Exhibit B hereto and (B) if the aggregate principal amount of the
Securities being transferred is less than $250,000 at the time of such transfer, an Opinion of 




38







 


Counsel
acceptable to the Company that such transfer is in compliance with the Securities Act. 


        (ii)   If
the proposed transferor is an Agent Member holding a beneficial interest in the U.S. Global Security, upon receipt by the Security Registrar of (x) the
documents, if any, required by the preceding paragraph (i), and (y) instructions given in accordance with the Depositary's and the Security Registrar's procedures, the Security Registrar
shall reflect on its books and records the date and a decrease in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the beneficial interest in the U.S.
Global Security to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Securities of like tenor and amount. 




        (c)    Transfers of Interests in the Offshore Global Securities or Offshore Physical Securities.    The following
provisions shall apply with respect to any transfer of interests in the Offshore Global Securities or Offshore Physical Securities: 



        (i)    prior
to removal of the Private Placement Legend from an Offshore Global Security or Offshore Physical Security pursuant to Section 2.05, the Security Registrar
shall refuse to register such transfer unless such transfer complies with Section 3.07(a) or Section 3.07(d), as the case may be; and 



        (ii)   after
such removal, the Security Registrar shall register the transfer of any such Security without requiring any additional certification. 




        (d)    Transfers to Non-U.S. Persons at Any Time.    The following provisions shall apply with respect to
any transfer of a Security to a Non-U.S. Person: 



        (i)    The
Security Registrar shall register any proposed transfer to any Non-U.S. Person if the Security to be transferred is a U.S. Physical Security or an
interest in a U.S. Global Security only upon receipt of a certificate substantially in the form of Exhibit C hereto from the proposed transferor. 


        (ii)   (A)
If the proposed Transferor is an Agent Member holding a beneficial interest in a U.S. Global Security, upon receipt by the Security Registrar of (x) the
documents required by paragraph (i) and (y) instructions in accordance with the Depositary's and the Security Registrar's procedures, the Security Registrar shall reflect on its books
and records the date and a decrease in the principal amount of such U.S. Global Security in an amount equal to the principal amount of the beneficial interest in the U.S. Global Security to be
transferred, and (B) if the proposed transferee is an Agent Member, upon receipt by the Security Registrar of instructions given in accordance with the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Offshore Global Security in an amount equal to the principal amount of
the U.S. Physical Securities or the U.S. Global Security, as the case may be, to be transferred, and the Trustee shall cancel the Physical Security, if any, so transferred or decrease the amount of
the U.S. Global Security. 




        (e)    Private Placement Legend.    Upon the transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Security Registrar shall deliver Securities that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of securities bearing the Private Placement
Legend, the Security Registrar shall deliver only Securities that bear the Private Placement Legend unless either (i) the circumstances contemplated by Section 2.05 exist or
(ii) there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the Securities Act. 



39









  



        (f)    General.    By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a
Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in
this Indenture. The Security Registrar shall not register a transfer of any Security unless such transfer complies with the restrictions on transfer of such Security set forth in the Private Placement
Legend and in this Indenture. In connection with any transfer of Securities, each Holder agrees by its acceptance of the Securities to furnish the Trustee or the Company such certifications, legal
opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Trustee shall not be required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such certifications, legal opinions or other information. 




        The
Trustee shall retain copies of all letters, notices and other written communications received pursuant to Section 3.06 or this Section 3.07. The Company shall have the
right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Trustee. 


Section 3.08.    Mutilated, Destroyed, Lost and Stolen Securities.    


        If
any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding. 


        If
there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously outstanding. 


        In
case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security. 


        Upon
the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. 



        Every
new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities duly issued hereunder. 


        The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities. 


Section 3.09.    Payment of Interest; Interest Rights Preserved.    


        Interest
on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. 


40







 



        Any
interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to
be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
Clause (1) or (2) below: 



        (1)   The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder in the manner specified in Section 1.06, not
less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2). 


        (2)   The
Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee. 




        Subject
to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. 


Section 3.10.    Persons Deemed Owners.    


        Prior
to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.09) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. 


Section 3.11.    Cancellation.    


        All
Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any Offer to Purchase pursuant to Section 10.13 shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so 


41







 



delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order; provided,  however, that the
Trustee shall not be required to destroy canceled Securities. 



Section 3.12.    Computation of Interest.    


        Interest
on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. 


Section 3.13.    CUSIP, CINS and ISIN Numbers.    


        The
Company in issuing the Securities may use "CUSIP," "CINS" and "ISIN" numbers (if then generally in use), and, if so, the Trustee shall use the "CUSIP," "CINS" and "ISIN" numbers in
notices of redemption or repurchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or repurchase and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption or repurchase shall not be affected by any defect in or omission of such numbers. 


ARTICLE 4.

SATISFACTION AND DISCHARGE  


Section 4.01.    Satisfaction and Discharge of Indenture.    



        This
Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the
Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when 



        (1)   either




        (A)  all
Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.08 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or 


        (B)  all
such Securities not theretofore delivered to the Trustee for cancellation 



        (i)    have
become due and payable, or 


        (ii)   will
become due and payable at their Stated Maturity within one year, or 


        (iii)  are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, 




and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; 




42







 




        (2)   the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and 


        (3)   the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with. 




Notwithstanding
the satisfaction and discharge of this Indenture pursuant to this Article 4, the obligations of the Company to the Trustee under Section 6.07, the obligations of the
Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. 


Section 4.02.    Application of Trust Money.    



        Subject
to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee. 


ARTICLE 5.  


 REMEDIES  


Section 5.01.    Events of Default.    


        "Event
of Default", wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): 



        (1)   failure
to pay principal of (or premium, if any, on) any Security at its Maturity; or 


        (2)   failure
to pay any interest upon any Security when due, continued for 30 days; or 


        (3)   default,
on the applicable Purchase Date, in the purchase of Securities required to be purchased by the Company pursuant to an Offer to Purchase as to which an Offer has
been mailed to Holders or failure to make an Offer to Purchase as required hereunder; or 


        (4)   default
in the performance, or breach, of Section 8.01; or 


        (5)   default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default whose performance or
whose breach is elsewhere in this Section specifically dealt with) or in the Securities, and continuance of such default or breach for a period of 60 days after there has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Stated Maturity of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or 



        (6)   a
default or defaults under any bond(s), debenture(s), note(s) or other evidence(s) of Debt for money borrowed by the Company or any Restricted Subsidiary (or under any
mortgage(s), indenture(s) or instrument(s) under which there may be issued or by which there may be secured or evidenced any Debt for money borrowed by the Company or any Restricted Subsidiary)
having, individually or in the aggregate, a principal or similar amount outstanding of at least $25,000,000, whether such Debt now exists or shall hereafter be created, which default or 



43







 




defaults
shall constitute a failure to pay any portion of the principal or similar amount of such Debt when due and payable after the expiration of any applicable grace period with respect thereto or
shall have resulted in such Debt becoming or being declared due and payable; or 


        (7)   a
final judgment or final judgments for the payment of money are entered against the Company or any Restricted Subsidiary in an aggregate amount in excess of $25,000,000
by a court or courts of competent jurisdiction, which judgments remain undischarged or unbonded for a period (during which execution shall not be effectively stayed) of 60 days after the right
to appeal all such judgments has expired; or 


        (8)   the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Restricted
Subsidiary under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company
or any Restricted Subsidiary or of any substantial part of the property of the Company or any Restricted Subsidiary, or ordering the winding up or liquidation of the affairs of the Company or any
Restricted Subsidiary, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or 


        (9)   the
commencement by the Company or any Restricted Subsidiary of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or any Restricted Subsidiary to the entry of a decree or
order for relief in respect of the Company or any Restricted Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or any Restricted Subsidiary, or the filing by the Company or any Restricted Subsidiary of a
petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by the Company or any Restricted Subsidiary to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or any Restricted Subsidiary or of any substantial
part of the property of the Company or any Restricted Subsidiary, or the making by the Company or any Restricted Subsidiary of an assignment for the benefit of creditors, or the admission by the
Company or any Restricted Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action. 




Section 5.02.    Acceleration of Maturity; Rescission and Annulment.    


        If
an Event of Default (other than an Event of Default specified in Section 5.01(8) or (9)) occurs and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount at Stated Maturity of the Outstanding Securities may declare the Default Amount of all the Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such Default Amount and any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 5.01(8) or (9) occurs, the Default Amount of and any accrued interest on the Securities then Outstanding shall ipso
facto become immediately due and payable without any declaration or other Act on the part of the Trustee or any Holder. 


44







 



        The
Default Amount in respect of any particular Security as of any particular date shall equal 100% of the principal amount payable in respect of the Security at the Stated Maturity
thereof. 


        At
any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided,
the Holders of a majority in principal amount at Stated Maturity of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if 



        (1)   the
Company has paid or deposited with the Trustee a sum sufficient to pay 



        (A)  all
overdue interest on all Securities (without duplication of any amount thereof paid or deposited pursuant to Clause (B) or (C) below), 


        (B)  the
principal of (and premium, if any, on) any Securities which have become due otherwise than by such declaration of acceleration (including any Securities required to
have been purchased on the Purchase Date pursuant to an Offer to Purchase made by the Company) and, to the extent that payment of such interest is lawful, interest thereon at the rate provided by the
Securities (without duplication of any amount thereof paid or deposited pursuant to Clause (A) above or Clause (C) below), 


        (C)  to
the extent that payment of such interest is lawful, interest upon overdue interest at the rate provided by the Securities (without duplication of any amount thereof
paid or deposited pursuant to Clause (A) or (B) above), and 


        (D)  all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; 




and 


        (2)   all
Events of Default, other than the non-payment of the principal of Securities which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13. 




No
such rescission shall affect any subsequent default or impair any right consequent thereon. 


        Unless
the context otherwise requires, references in this Indenture to the principal amount of any Security mean, as of any day, (i) with respect to any portion thereof required
thereunder to be redeemed or repurchased on any redemption or repurchase date on or prior to such day, the amount due and payable in respect of such portion upon such redemption or repurchase date
(excluding premium and interest), (ii) with respect to any portion thereof not required to be so redeemed or repurchased, but which has been declared due and payable prior to the Stated
Maturity thereof, the
Default Amount in respect of such portion as of such day and (iii) with respect to any portion thereof not required so to be redeemed or repurchased and not so declared due and payable, such
portion of the principal amount of such Security payable at Stated Maturity thereof. 


Section 5.03.    Collection of Indebtedness and Suits for Enforcement by Trustee.    


        The
Company covenants that if 



        (1)   default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or 


        (2)   default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof or, with respect to any Security required to have been
purchased pursuant to an Offer to Purchase made by the Company, at the Purchase Date thereof, 



45







 





the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and
premium, if any) and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at
the rate provided by the Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel. 



        If
an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy. 


Section 5.04.    Trustee May File Proofs of Claim.    


        In
case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.07. 



        No
provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee. 


Section 5.05.    Trustee May Enforce Claims Without Possession of Securities.    



        All
rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered. 


Section 5.06.    Application of Money Collected.    



        Any
money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid: 



        FIRST:    To
the payment of all amounts due the Trustee under Section 6.07; and 


        SECOND:    To
the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest,
respectively. 



46









   
Section 5.07.    Limitation on Suits.    


        No
Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless 



        (1)   such
Holder has previously given written notice to a Responsible Officer of the Trustee of a continuing Event of Default; 


        (2)   the
Holders of a majority in aggregate principal amount at Stated Maturity of the Outstanding Securities shall have made written request to a Responsible Officer of the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; 


        (3)   such
Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with
such request; 


        (4)   the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and 


        (5)   no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount
at Stated Maturity of the Outstanding Securities; 




it
being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders. 


Section 5.08.    Unconditional Right of Holders to Receive Principal, Premium and Interest.    


        Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.09) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date or
in the case of an Offer to Purchase made by the Company and required to be accepted as to such Security, on the Purchase Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder. 


Section 5.09.    Restoration of Rights and Remedies.    


        If
the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. 


Section 5.10.    Rights and Remedies Cumulative.    


        Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.08, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. 


47







 



Section 5.11.    Delay or Omission Not Waiver.    



        No
delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. 


Section 5.12.    Control by Holders.    


        By
giving the Required Consent, those Persons giving the Required Consent shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee, provided that 



        (1)   such
direction shall not be in conflict with any rule of law or with this Indenture, and 


        (2)   the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. 




Section 5.13.    Waiver of Past Defaults.    


        By
giving the Required Consent, those Persons giving the Required Consent may, on behalf of the Holders of all the Securities, waive any past default hereunder and its consequences,
except a default 



        (1)   in
the payment of the principal of (or premium, if any) or interest on any Security (including any Security which is required to have been purchased pursuant to an Offer
to Purchase which has been made by the Company), or 


        (2)   in
respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security
affected. 




        Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon. 


Section 5.14.    Undertaking for Costs.    



        In
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company. 


Section 5.15.    Wavier of Stay of Extension Laws.    



        The
Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been enacted. 


48







 


ARTICLE 6.  


 THE TRUSTEE  


Section 6.01.    Certain Duties and Responsibilities.    


        The
duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. 


Section 6.02.    Notice of Defaults.    


        The
Trustee shall give the Holders notice of any Default hereunder as and to the extent provided by the Trust Indenture Act; provided,  however, that in the
case of any Default of the character specified in Section 5.01(5), no such notice to Holders shall be given until at least
30 days after a Responsible Officer has actual knowledge of the occurrence thereof. 


Section 6.03.    Certain Rights of Trustee.    


        Subject
to the provisions of Section 6.01: 



        (a)   the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties; 


        (b)   any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution; 


        (c)   whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; 



        (d)   the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; 


        (e)   the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction; 



        (f)    the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled (subject to reasonable confidentiality
arrangements as may be 



49







 




proposed
by the Company) to examine the books, records and premises of the Company, personally or by agent or attorney; 


        (g)   the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; 



        (h)   the
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; 


        (i)    the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; 



        (j)    the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; and 


        (k)   the
Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to
take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded. 




Section 6.04.    Not Responsible for Recitals or Issuance of Securities.    


        The
recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof. 


Section 6.05.    May Hold Securities.    


        The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent. 


Section 6.06.    Money Held in Trust.    


        Money
held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the Company. 


Section 6.07.    Compensation and Reimbursement.    


        The
Company agrees: 



        (1)   to
pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); 



50







 

        (2)   except
as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and 


        (3)   to
indemnify the Trustee and any predecessor Trustee for, and to hold it harmless against, any and all loss, damage, claim, liability or expense incurred without
negligence or bad faith on its part, including taxes (other than taxes based upon, measured by or determined by the revenue or income of the Trustee), arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder. 




        The
Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing to it pursuant to this Section 6.07, except with
respect to funds held in trust for the benefit of the Holders of particular Securities. 


        When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(8) or Section 5.01(9), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency
or other similar law. 


        The
provisions of this Section shall survive any termination of this Indenture. 


Section 6.08.    Conflicting Interests.    


        If
the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. 


Section 6.09.    Corporate Trustee Required; Eligibility.    


        There
shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000 and a designated corporate trust office in the Borough of Manhattan, The City of New York. If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. 


Section 6.10.    Resignation and Removal; Appointment of Successor.    


        (a)   No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section 6.11. 



        (b)   The
Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee in accordance with the
applicable requirements of Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee. 


        (c)   The
Trustee may be removed at any time by Act of the Holders of a majority in principal amount at Stated Maturity of the Outstanding Securities, delivered to the Trustee
and to the Company. If an instrument of acceptance by a successor Trustee in accordance with the applicable requirements 


51







 



of
Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee. 


        (d)   If
at any time: 



        (2)   the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or 


        (3)   the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or 


        (4)   the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, 




then,
in any such case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. 



        (e)   If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed
by Act of the Holders of a majority in principal amount at Stated Maturity of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in accordance with the applicable requirements of Section 6.11, any
Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee. 


        (f)    The
Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in
Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. 


Section 6.11.    Acceptance of Appointment by Successor.    


        Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts. 


        No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. 


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Section 6.12.    Merger, Conversion, Consolidation or Succession to Business.    


        Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. 


Section 6.13.    Preferential Collection of Claims Against Company.    


        If
and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor). 


Section 6.14.    Appointment of Authenticating Agent.    


        The
Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption or partial purchase or pursuant to Section 3.08, and Securities so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. 


        Any
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent. 


        An
Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a 


53







 



successor
Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06, to all Holders as their names and
addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. 



        The
Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section. 


        If
an appointment is made pursuant to this Section, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form: 



        This
is one of the Securities described in the within-mentioned Indenture. 




Dated:




	 	 	BNY WESTERN TRUST COMPANY
 as Trustee	 
	

 	
 	

By	

  
 As Authenticating Agent	

,
	

 	
 	

By	

  
 Authority Signatory	

,




ARTICLE 7.  


 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY  


Section 7.01.    Company to Furnish Trustee Names and Addresses of Holders.    


        The
Company will furnish or cause to be furnished to the Trustee 



        (a)   semi-annually,
not more than 15 days after each December 15 and June 15, commencing June 15, 2004 a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and 


        (b)   at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished; 




excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. 


Section 7.02.    Preservation of Information; Communications to Holders.    


        (a)   The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the
Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished. 


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        (b)   The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and
duties of the Trustee, shall be as provided by the Trust Indenture Act. 


        (c)   Every
Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act. 


Section 7.03.    Reports by Trustee.    


        (a)   Within
60 days after May 15 of each year commencing May 15, 2005, the Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. 



        (b)   A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed,
with the Commission and with the Company. The Company will promptly notify the Trustee when the Securities are listed on any stock exchange. 


Section 7.04.    Reports by Company.    


        The
Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. The Trustee's receipt of
such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein. 


ARTICLE 8.  


 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE  


Section 8.01.    Company May Consolidate, Etc. Only on Certain Terms.    


        The
Company (x) shall not, in any transaction or series of related transactions, merge or consolidate with or into, or sell, assign, convey, transfer or otherwise dispose of its
properties and assets substantially as an entirety to, any Person, and (y) shall not permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if
such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer or other disposition of the properties and assets of the Company and its
Restricted Subsidiaries, taken as a whole, substantially as an entirety to any Person, unless, in each case (x) or (y), at the time and after giving effect thereto 



        (i)    either:
(A) if the transaction or series of transactions is a consolidation of the Company with or a merger of the Company with or into any other Person, the
Company shall be the surviving Person of such merger or consolidation, or (B) the Person formed by any consolidation with or merger with or into the Company, or to which the properties and
assets of the Company or the Company and its Restricted Subsidiaries, taken as a whole, as the case may be, substantially as an entirety are sold, assigned, conveyed or otherwise transferred (any such
surviving Person or transferee Person referred to in this clause (B) being the "Surviving Entity"), shall be a corporation, partnership, limited liability company or trust organized and
existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume by a supplemental indenture executed and delivered to the Trustee, in
form satisfactory to 



55







 

the
Trustee, all the obligations of the Company under the Securities and this Indenture and, in each case, this Indenture, as so supplemented, shall remain in full force and effect, and 



        (ii)   immediately
before and immediately after giving effect to such transaction or series of transactions on a pro forma
basis (including any Debt Incurred or anticipated to be Incurred in connection with or in respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and
be continuing, and 


        (iii)  the
Company or the Surviving Entity will, at the time of such transaction and after giving pro forma effect thereto as
if such transaction had occurred at the beginning of the applicable period, (A) have
Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) be permitted to Incur
at least $1.00 of additional Debt pursuant to clause (a) of Section 10.08; 




provided, however, that the foregoing requirements shall not apply to any transaction or series of
transactions involving the sale, assignment, conveyance, transfer or other disposition of the properties and assets by any Restricted Subsidiary to any other Restricted Subsidiary, or the merger or
consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary. The Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in
one or more related transactions, to any other Person. 


        In
connection with any consolidation, merger, sale, assignment, conveyance, transfer or other disposition contemplated by the foregoing provisions, the Company shall deliver, or cause to
be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate stating that such consolidation, merger, sale, assignment, conveyance, transfer, or
other disposition and the supplemental indenture in respect thereof (required under clause (i)(B) of the preceding paragraph) comply with the requirements of this Indenture and an Opinion of
Counsel that the conditions of this Article 8 have been complied with. Each such Officers' Certificate shall set forth the manner of determination of the Company's compliance in accordance with
clause (iii) of the preceding paragraph. 


        For
all purposes of this Indenture and the Securities (including the provisions described in the two immediately preceding paragraphs and Section 10.08 and Section 10.10),
Subsidiaries of any Surviving Entity will, upon such transaction or series of transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to Section 10.10 and
all Debt of the Surviving Entity and its Subsidiaries that was not Debt of the Company and its Subsidiaries immediately prior to such transaction or series of transactions shall be deemed to have been
Incurred upon such transaction or series of transactions. 


Section 8.02.    Successor Substituted.    


        Upon
any transaction or series of transactions that are of the type described in clause (x) or (y) of, and are effected in accordance with, Section 8.01, the
Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein, and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. 


56







 


ARTICLE 9.  


 SUPPLEMENTAL INDENTURES  


Section 9.01.    Supplemental Indentures Without Consent of Holders.    



        Without
the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: 



        (1)   to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; or 


        (2)   to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or 



        (3)   to
provide for the issuance of Additional Securities in accordance with the limitations set forth herein, as of the date hereof; or 


        (4)   to
add to the covenants of the Company for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company; or 


        (5)   to
comply with any requirements of the Commission in order to effect and maintain the qualification of this Indenture under the Trust Indenture Act; or 


        (6)   to
make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture,  provided such action pursuant to this
Clause (6) shall not adversely affect the interests of the Holders in any material respect (as determined
in good faith by the Board of Directors). 




Section 9.02.    Supplemental Indenture with Consent of Holders.    


        After
receipt of the Required Consent, given by Act of those Persons giving the Required Consent delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided,  however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby, 



        (1)   change
the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable thereon, or reduce the Default Amount that would be due and payable on acceleration of the Maturity thereof pursuant to Section 5.02, or change the place of payment
where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of any Security required to be purchased pursuant to an Offer to Purchase, on or after the
applicable Purchase Date), or 


        (2)   reduce
the percentage in principal amount at Stated Maturity of the Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or 


        (3)   modify
any of the provisions of this Section, Section 5.13 or Section 10.18, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot 



57







 




be
modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or 



        (4)   following
the mailing of an Offer with respect to an Offer to Purchase pursuant to Section 10.13, modify the provisions of this Indenture with respect to such
Offer to Purchase in a manner adverse to such Holder. 




        It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof. 


Section 9.03.    Execution of Supplemental Indentures.    



        In
executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. 


Section 9.04.    Effect of Supplemental Indentures.    



        Upon
the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. 


Section 9.05.    Conformity with Trust Indenture Act.    


        Every
supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. 


Section 9.06.    Reference in Securities to Supplemental Indentures.    


        Securities
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities. 


ARTICLE 10.  


 COVENANTS  


Section 10.01.    Payment of Principal, Premium and Interest.    


        The
Company will duly and punctually pay the principal of (and premium, if any) and interest on the Securities in accordance with the terms of the Securities and this Indenture. 



Section 10.02.    Maintenance of Office or Agency.    


        The
Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may 


58







 



be
made or served at the designated office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. In the event any
such notice or demands are so made or served on the Trustee, the Trustee will promptly forward copies thereof to the Company. 


        The
Company may also from time to time designate one or more other offices or agencies (in or outside the Borough of Manhattan, The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided,  however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency. 


Section 10.03.    Money for Security Payments to be Held in Trust.    



        If
the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. 


        Whenever
the Company shall have one or more Paying Agents, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act. 


        The
Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will: (i) comply with the provisions of the Trust Indenture Act applicable to it as Paying Agent and (ii) during the continuance of
any default by the Company (or any other obligor upon the Securities) in the making of any payment in respect of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent as such. 


        The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. 



        Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. 


Section 10.04.    Existence.    



        Subject
to Article 8, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and
material franchises; 


59







 



 provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors in
good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect
to the Holders. 


Section 10.05.    Maintenance of Properties.    


        The
Company will cause all material properties used or useful in the conduct of its business or the business of any Restricted Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times;  provided, however, that nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such material properties if such discontinuance is, as determined by the Board of Directors in good faith, desirable in the conduct of its business or the business
of any Restricted Subsidiary and not disadvantageous in any material respect to the Holders. 


Section 10.06.    Payment of Taxes and Other Claims.    


        The
Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed
upon the Company or any of its Restricted Subsidiaries or upon the income, profits or property of the Company or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its Restricted Subsidiaries; provided,  however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by appropriate proceedings. 


Section 10.07.    Maintenance of Insurance.    


        The
Company shall, and shall cause its Restricted Subsidiaries to, keep at all times all of their properties which are of an insurable nature insured against loss or damage with insurers
believed by the Company to be responsible to the extent that property of similar character is usually so insured by corporations similarly situated and owning like properties in accordance with good
business practice. 


Section 10.08.    Limitation on Consolidated Debt.    


        The
Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt (including Acquired Debt), other than Permitted Debt, unless immediately after giving effect to
the Incurrence of such Debt and the receipt and application of the net proceeds therefrom (including, without limitation, the application or use of the net proceeds therefrom to repay Debt or make any
Restricted Payment) (a) the Consolidated Debt to Annualized Operating Cash Flow Ratio would be less than 7.0 to 1.0, or (b) in the case of any incurrence of Debt prior to
January 1, 2005 only, Consolidated Debt would be equal to or less than 80% of Total Invested Capital. 


Section 10.09.    Limitation on Restricted Payments.    


        The
Company shall not, directly or indirectly: 



          (i)  declare
or pay any dividend on, or make any distribution to the holders of, any shares of its Capital Stock (other than dividends or distributions payable solely in its
Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to purchase any such Capital Stock (other than Redeemable Stock)); 



60









  



         (ii)  purchase,
redeem or otherwise acquire or retire for value, or permit any Restricted Subsidiary to, directly or indirectly, purchase, redeem or otherwise acquire or
retire for value (other than value consisting solely of Capital Stock of the Company that is not Redeemable Stock or options, warrants or other rights to acquire such Capital Stock that is not
Redeemable Stock), any Capital Stock of the Company (including options, warrants or other rights to acquire such Capital Stock); 



        (iii)  redeem,
repurchase, defease or otherwise acquire or retire for value, or permit any Restricted Subsidiary to, directly or indirectly, redeem, repurchase, defease or
otherwise acquire or retire for value (other than value consisting solely of Capital Stock of the Company that is not Redeemable Stock or options, warrants or other rights to acquire such Capital
Stock that is not Redeemable Stock), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Debt that is subordinate (whether pursuant to its terms or by operation
of law) in right of payment to the Securities; or 


        (iv)  make,
or permit any Restricted Subsidiary, directly or indirectly, to make, any Investment (other than any Permitted Investment) in any Person (other than in a
Restricted Subsidiary or a Person that becomes a Restricted Subsidiary as a result of such Investment); 




(each
of the foregoing actions set forth in clauses (i) through (iv), other than any such action that is a Permitted Investment or a Permitted Distribution, being referred to as a "Restricted
Payment") unless, at the time of such Restricted Payment, and after giving effect thereto: 



        (a)   no
Default or Event of Default shall have occurred and be continuing; 



        (b)   the
Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable period, have been permitted to Incur at least $1.00 of additional Debt pursuant to clause (a) of Section 10.08; and 


        (c)   after
giving effect to such Restricted Payment on a pro forma basis, the aggregate amount of all Restricted Payments made
on or after the date hereof shall not exceed: 



        (1)   the
amount of (x) the Operating Cash Flow of the Company after December 31, 2002 through the end of the latest full fiscal quarter for which consolidated
financial statements of the Company are available preceding the date of such Restricted Payment (treated as a single accounting period) less (y) 150% of the cumulative Consolidated Interest
Expense of the Company after December 31, 2002 through the end of the latest full fiscal quarter for which consolidated financial statements are available preceding the date of such Restricted
Payment (treated as a single accounting period), plus 


        (2)   the
aggregate net proceeds (other than proceeds from a Committed Capital Contribution), including the fair market value of property other than cash (as determined,
(A) in the case of any property other than cash with a value less than $25.0 million, by the Board of Directors, whose good faith determination shall be conclusive and as evidenced by a
Board Resolution, or (B) in the case of any property other than cash with a value equal to or greater than $25.0 million, by an accounting, appraisal or investment banking firm of
national standing and evidenced by a written opinion of such firm), received by the Company from the issuance and sale (other than to a Restricted Subsidiary) on or after February 24, 2000 of
shares of its Capital Stock (other than Redeemable Stock), or any options, warrants or other rights to purchase such Capital Stock (other than Redeemable Stock), other than shares of Capital Stock or
options, warrants or other rights to purchase Capital Stock (or shares issuable upon exercise thereof), the proceeds of the issuance of which is used to make a Directed Investment (unless such
designation has been revoked by the Board of Directors and 




61







 





the
Company is able to make such Investment pursuant to this Section 10.09 (other than as a Directed Investment)), plus 



        (3)   the
aggregate net proceeds, including the fair market value of property other than cash (as determined, (A) in the case of any property other than cash with a
value less than $25.0 million, by the Board of Directors, whose good faith determination shall be conclusive and as evidenced by a Board Resolution, or (B) in the case of any property
other than cash with a value equal to or greater than $25.0 million, by an accounting, appraisal or investment banking firm of national standing and evidenced by a written opinion of such
firm), received by the Company from the issuance or sale (other than to a Restricted Subsidiary) after February 24, 2000 of any Capital Stock of the Company (other than Redeemable Stock), or
any options, warrants or other rights to purchase such Capital Stock (other than Redeemable Stock), upon the conversion of, or exchange for, Debt of the Company or a Restricted Subsidiary. 





        The
foregoing limitations in this Section 10.09 do not limit or restrict the making of any Permitted Distribution, Permitted Investment or Directed Investment, and neither a
Permitted Distribution nor a Permitted Investment shall be counted as a Restricted Payment for purposes of clause (c) above. In addition, the foregoing limitations do not prevent the Company
from (I) paying a dividend on Capital Stock of the Company within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such
dividend in accordance with the provisions of this Indenture, (II) repurchasing Capital Stock of the Company (including options, warrants or other rights to acquire such Capital Stock) from
former employees or Directors of the Company or any Subsidiary thereof for consideration not to exceed (A) in the case of all such employees or directors (other than Itemized Executives),
$3.0 million in the aggregate in any fiscal year, with amounts not used in any given fiscal year being carried over into subsequent fiscal years, and (B) in the case of any Itemized
Executive, $2.0 million per Itemized Executive (plus the amount of any proceeds of any key man life insurance received by the Company in respect of such Itemized Executive) in any fiscal year,
with the aggregate amount of such repurchases under this clause (II)(B) not to exceed $5.0 million in any fiscal year; provided that the
aggregate amount of all such repurchases made pursuant to this clause (II) does not exceed $17.0 million in the aggregate (not including the amount of any proceeds of key man life
insurance received by the Company in respect to any Itemized Executive), (III) the repurchase, redemption or other acquisition for value of Capital Stock of the Company to the extent necessary
to prevent the loss or secure the renewal or reinstatement of any license or franchise held by the Company or any of its Subsidiaries from any governmental agency, (IV) making a loan in the
aggregate principal amount of approximately $2.2 million to certain officer(s) of the Company as described in the Offering Memorandum (with Restricted Payments pursuant to this clause not being
counted as Restricted Payments for purposes of clause (c) above), (V) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Securities, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, (a) the proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock (other than Redeemable Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock) the
proceeds of which are not designated as a Directed Investment, or (b) Debt that is at least as subordinated in right of payment to the Securities, including premium, if any, and accrued and
unpaid interest, as the Debt being purchased, (with Restricted Payments pursuant to this clause not being counted as Restricted Payments for purposes of clause (c) above), (VI) the
repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a capital
contribution or a substantially concurrent offering of, shares of Common Stock (other than Redeemable Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock) the
proceeds of which are not designated as a Directed Investment, or (VII) other Restricted Payments not 


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to
exceed $5.0 million in the aggregate at any time outstanding (with Restricted Payments pursuant to this clause not being counted as Restricted Payments for purposes of clause (c)
above). 


        Notwithstanding
the foregoing, no Investment in a Person that immediately thereafter would be a Restricted Subsidiary will be a Restricted Payment. In addition, if any Person in which an
Investment is made, which Investment constitutes a Restricted Payment when made, thereafter becomes a Restricted Subsidiary, all such Investments previously made in such Person shall no longer be
counted as Restricted Payments for purposes of calculating the aggregate amount of Restricted Payments pursuant to clause (c) of the third preceding paragraph or the aggregate amount of
Investments pursuant to
clause (V)(a) of the immediately preceding paragraph, in each case to the extent such Investments would otherwise be so counted. 



        For
purposes of clause (c)(3) above, the net proceeds received by the Company from the issuance or sale of its Capital Stock either upon the conversion of, or exchange for, Debt
of the Company or any Restricted Subsidiary shall be deemed to be an amount equal to (a) the sum of (i) the principal amount or accreted value (whichever is less) of such Debt on the
date of such conversion or exchange and (ii) the additional cash consideration, if any, received by the Company upon such conversion or exchange, less any payment on account of fractional
shares, minus (b) all expenses incurred in connection with such issuance or sale. In addition, for purposes of clause (c)(3) above, the
net proceeds received by the Company from the issuance or sale of its Capital Stock upon the exercise of any options or warrants of the Company or any Restricted Subsidiary shall be deemed to be an
amount equal to (a) the additional cash consideration, if any, received by the Company upon such exercise, minus (b) all expenses incurred
in connection with such issuance or sale. 


        For
purposes of this Section 10.09, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment
shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the fair market value of the non-cash portion of such Restricted
Payment, as determined by the Board of Directors (whose good faith determination shall be conclusive and evidenced by a Board Resolution). 


        The
amount of any Investment outstanding at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital, repayment of loans and
return on capital (including interest and dividends), in each case, received in cash, up to the amount of such Investment on the date made. 


Section 10.10.    Restricted Subsidiaries.    


        Subject
to compliance with Section 10.09, the Board of Directors may designate any Restricted Subsidiary as an Unrestricted Subsidiary. 


        The
designation by the Board of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary shall, for all purposes of Section 10.09 (including clause (b) thereof),
be deemed to be a Restricted Payment of an amount equal to the fair market value of the Company's ownership interest in such Subsidiary (including, without duplication, such indirect ownership
interest in all Subsidiaries of such Subsidiary), as determined by the Board of Directors in good faith and evidenced by a Board Resolution. 



        Notwithstanding
the foregoing provisions of this Section 10.10, the Board of Directors may not designate a Subsidiary of the Company to be an Unrestricted Subsidiary if, after
such designation, (a) the Company or any of its other Restricted Subsidiaries (i) provides credit support for, or a Guarantee of, any Debt of such Subsidiary (including any undertaking,
agreement or instrument evidencing such Debt) or (ii) is directly or indirectly liable for any Debt of such Subsidiary, (b) a default with respect to any Debt of such Subsidiary
(including any right which the holders thereof may have to take enforcement action against such Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Debt of the
Company or any Restricted Subsidiary to declare a default 


63







 



on
such other Debt or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity or (c) such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, any Restricted Subsidiary which is not a Subsidiary of the Subsidiary to be so designated. 


        The
Board of Directors, from time to time, may designate any Person that is about to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may designate any newly-created
Subsidiary of the Company as an Unrestricted Subsidiary, if at the time such Subsidiary is created it contains no assets (other than such de minimis
amount of assets then required by law for the formation of corporations) and no Debt. Subsidiaries of the Company that are not designated by the Board of Directors as Restricted or Unrestricted
Subsidiaries shall be deemed to be Restricted Subsidiaries. Notwithstanding any provisions of this Section 10.10, all Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted
Subsidiaries. 


Section 10.11.    Transactions with Affiliates.    



        The
Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) or series of related transactions with any Affiliate of the Company on terms that are less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those which might be obtained at the time of such transaction from a Person that is not such an Affiliate; provided,  however, that this
Section 10.11 shall not limit, or be applicable to, (i) any transaction between Unrestricted Subsidiaries not involving
the Company or any Restricted Subsidiary, (ii) any transaction between the Company and any Restricted Subsidiary or between Restricted Subsidiaries or (iii) any Permitted Transactions.
In addition, any transaction or series of related transactions, other than Permitted Transactions, between the Company or any Restricted Subsidiary and any Affiliate of the Company (other than a
Restricted Subsidiary) involving an aggregate consideration of $5 million or more must be approved in good faith by a majority of the Company's Disinterested Directors (of which there must be
at least one) and evidenced by a Board Resolution, or if there is no Disinterested Director at such time or such transaction involves aggregate consideration of $25.0 million or more, by an
opinion as to fairness ("Fairness Opinion") to the Company or such Subsidiary from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. For
purposes of this Section 10.11, any transaction or series of related transactions between the Company or any Restricted Subsidiary and an Affiliate of the Company that is approved by a majority
of the Disinterested Directors (of which there must be at least one to utilize this method of approval) and evidenced by a Board Resolution or for which a Fairness Opinion has been issued shall be
deemed to be on terms as
favorable as those that might be obtained at the time of such transaction (or series of transactions) from a Person that is not such an Affiliate and thus shall be permitted under this
Section 10.11. 


Section 10.12.    Liens.    


        The
Company shall not and shall not permit any of its Restricted Subsidiaries to create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind
(other than Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, unless all payments due under this Indenture and the Securities are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no longer secured by a Lien. 


Section 10.13.    Change of Control.    


        Upon
the occurrence of a Change of Control, the Company shall be required to make an Offer to Purchase all or any part of Outstanding Securities at a cash purchase price equal to 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the Purchase Date. The Offer to Purchase must be made within 30 days following a
Change of Control, 


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must
remain open for at least 30 and not more than 180 days and must comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities
laws and regulations. 


Section 10.14.    Dividend and Other Payment Restrictions Affecting Subsidiaries.    



        The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its Restricted Subsidiaries or (iii) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries. However, the foregoing restrictions will not apply to encumbrances or restrictions existing under or by reason of (a) existing Debt as in effect on the date hereof, (b) any
Credit Facility as in effect as of the date hereof (or in the case of the New Credit Facility, as initially executed by the parties thereto), and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings
are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Credit Facility as in effect on the date hereof (as conclusively
determined in good faith by the Board of Directors and set forth in a Board Resolution), (c) this Indenture and the Securities, (d) applicable law, (e) any instrument governing
Debt (and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained
in such Debt as in effect on the date of its incurrence by the Company or any Restricted Subsidiary (as conclusively determined in good faith by an executive officer of the Company)) or Capital Stock
of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Debt was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, provided that, in the case of Debt, such Debt was permitted by the terms of this Indenture to be incurred, (f) customary non-assignment provisions in leases
entered into in the ordinary course of business, (g) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, (h) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Subsidiary pending its
sale or other disposition, (i) Liens securing Debt otherwise permitted to be incurred pursuant to the provisions of the covenant described above under Section 10.12 that limit the right
of the Company or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien, (j) provisions with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary course of business and (k) restrictions on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business. 


Section 10.15.    Activities of the Company and Restricted Subsidiaries.    


        The
Company shall not, and shall not permit any Restricted Subsidiary to, engage in any business other than the telecommunications business and related activities and services, including
such businesses, activities and services as the Company and the Restricted Subsidiaries are engaged in on the Closing Date. 


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Section 10.16.    Provision of Financial Information.    


        Whether
or not the Company is subject to Section 13(a) or 15(d) of the Exchange Act, or any successor provision thereto, the Company shall file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13(a) or 15(d) or any successor provision thereto
if the Company were subject thereto, such documents to be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required to file them. The Company shall also in any event (a) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any successor
provisions thereto if the Company were subject thereto and (b) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request
supply copies of such documents to any prospective Holder. The Trustee's receipt of such reports, information and documents shall not constitute constructive notice of any information contained
therein or determinable from information contained therein. 


        In
addition, for so long as any Securities remain outstanding, the Company shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A under the Securities Act. 


Section 10.17.    Statement by Officers as to Default: Compliance Certificates.    


        (a)   The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof an Officers' Certificate,
stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder), and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which
they may have knowledge. 


        (b)   The
Company shall deliver to a Responsible Officer of the Trustee, as soon as possible and in any event within 10 days after the Company becomes aware of the
occurrence of a Default or an Event of Default, an Officers' Certificate setting forth the details of such Default or Event of Default, and the action which the Company proposes to take with respect
thereto. 


Section 10.18.    Waiver of Certain Covenants.    



        The
Company may omit in any particular instance to comply with any covenant or condition set forth in Section 8.01, provided pursuant to Section 9.01(2) and set forth in
Sections 10.04 to 10.16, inclusive, if before the time for such compliance the Holders of at least a majority in principal amount at Stated Maturity of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in
full force and effect; provided, however, with respect to an Offer to Purchase as to which an Offer has
been mailed, no such waiver may be made or shall be effective against any Holder tendering Securities pursuant to such Offer, and the Company may not omit to comply with the terms of such Offer as to
such Holder. 


Section 10.19.    Limitation on Issuances and Sales of Equity Interests in Wholly Owned Subsidiaries.    


        The
Company (i) shall not, and shall not permit any Restricted Subsidiary of the Company to, transfer, convey, sell or otherwise dispose ("Transfer") of any Capital Stock in any
Wholly Owned Restricted Subsidiary of the Company to any Person (other than the Company or a Wholly Owned 


66







 



Restricted
Subsidiary of the Company) unless (a) such Transfer is of all the Capital Stock in such Wholly Owned Restricted Subsidiary and (b) the cash Net Proceeds from such Transfer are
applied in accordance with the covenant described below under Section 10.21 and (ii) will not permit any Wholly Owned Restricted Subsidiary of the Company to issue any of its Capital
Stock (other than, if necessary, shares of its Capital Stock constituting directors' qualifying shares) to any Person other than to the Company or a Wholly Owned Restricted Subsidiary of the Company.
The foregoing restrictions shall not apply to (i) the creation of Permitted Joint Ventures; (ii) any Transfer required by applicable law or regulation, (iii) the issuance of
Redeemable Stock that is otherwise permitted to be issued pursuant to the terms of this Indenture, and (iv) Transfers in which the Company or a Restricted Subsidiary acquired at the same time
not less than its proportionate share in such issuance of Capital Stock. 


Section 10.20.    Payments for Consent.    



        Neither
the Company nor any of its Restricted Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any
Holder of any Securities for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Securities unless such consideration is offered to be
paid or is paid to all Holders of the Securities that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. 


Section 10.21.    Asset Sales.    



        The
Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal to the fair market value (which shall be conclusively evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or Capital Stock issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the
Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the
Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Securities or any guarantee thereof) that are assumed by the
transferee of any such assets and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. 


        Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to repay Debt under a Credit Facility
or any Vendor Financing Debt or (b) to make a capital expenditure in the same or similar line of business as the Company is engaged in on the date hereof or in a business reasonably related
thereto, or (c) to acquire (i) Capital Stock of an entity that is or becomes a Restricted Subsidiary or (ii) other long-term assets that are used or useful in the same
or similar line of business as the Company or such Restricted Subsidiaries were engaged in on the date hereof or in businesses reasonably related thereto. Pending the final application of any such Net
Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales
that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company will be required to make an offer (an "Asset Sale Offer") to all Holders of Securities and all holders of other Debt that is pari
passu with the Securities containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets
to purchase the maximum principal amount at maturity of Securities and such other pari passu Debt that may be purchased out of the Excess Proceeds. The offer 


67







 



price
for such Asset Sale Offer shall be an amount in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with
the procedures set forth in this Indenture and the instrument or instruments governing such other pari passu Debt, respectively. To the extent that any
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount
of Securities tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis.
Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. 


ARTICLE 11.  


 REDEMPTION OF SECURITIES  


Section 11.01.    Right of Redemption.    


        The
Securities may be redeemed at any time on or after July 1, 2007, at the Company's option, in whole or in part, upon not less than 30 or more than 60 days' prior written
notice mailed by first class mail to each Holder's last address as it appears in the Security Register, at the Redemption Prices (expressed as a percentage of the principal amount at maturity thereof)
set forth below, plus an amount in cash equal to all accrued and unpaid interest and Additional Interest, if any, to the Redemption Date, if redeemed during the twelve-month period beginning
July 1 of each of the years set forth below. 



	Year
 
	 	Percentage
	 
	2007	 	104.063	%
	2008	 	102.031	%
	2009 and thereafter	 	100.000	%






        In
addition, in the event that the Company receives net proceeds from one or more sales of its Capital Stock (other than Redeemable Stock) prior to July 1, 2006, the Company may
redeem up to 35% of the aggregate principal amount of the Securities originally issued with the proceeds of such sale at a Redemption Price equal to 108.125% of such principal amount on the Redemption
Date, plus Additional Interest, if any thereon, to the Redemption Date; provided that at least 65% of the aggregate principal amount of the Securities
issued remain outstanding immediately after the occurrence of any such redemption (excluding Securities held by the Company and its Restricted Subsidiaries); and  provided, further, that such redemption occurs within 60 days after consummation of any such
sale. 


Section 11.02.    Applicability of Article.    


        Redemption
of Securities at the election of the Company, as permitted by this Indenture and the provisions of the Securities, shall be made in accordance with such provisions and this
Article. 


Section 11.03.    Election to Redeem; Notice to Trustee.    


        The
election of the Company to redeem any Securities pursuant to Section 11.01 shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company
pursuant to Section 11.01, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed. 


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Section 11.04.    Selection by Trustee of Securities to Be Redeemed.    


        In
the case of any partial redemption, selection of the Securities for redemption will be made by the Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities are not listed on a national securities exchange, on a pro rata basis, by lot
or by such other method as the Trustee shall deem to be fair and appropriate; provided that no Security of $1,000 in principal amount or less shall be
redeemed in part. 


        The
Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. 


        For
all purposes of this Indenture and of the Securities, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. 


Section 11.05.    Notice of Redemption.    


        Notice
of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 45 days prior to the Redemption Date, to each Holder of Securities
to be redeemed, at his address appearing in the Security Register. 



        All
notices of redemption shall state (including CUSIP, CINS and ISIN numbers, if any): 



        (1)   the
Redemption Date, 


        (2)   the
Redemption Price, 


        (3)   if
less than all the Outstanding Securities are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular
Securities to be redeemed, including CUSIP, CINS and ISIN numbers, 



        (4)   that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that cash interest thereon will cease to accrue
on and after said Redemption Date, 


        (5)   the
place or places where such Securities are to be surrendered for payment of the Redemption Price, and 


        (6)   if
the redemption is being made pursuant to the provisions of the Securities set forth in the third paragraph of Section 2.03, a brief description of the nature
and amount of Capital Stock sold by the Company, the aggregate purchase price thereof and the net cash proceeds therefrom available for such redemption, the date or dates on which such sale was
completed and the percentage of the aggregate principal amount of Outstanding Securities being redeemed. 




        Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense
of the Company and shall be irrevocable. 


Section 11.06.    Deposit of Redemption Price.    



        On
or before 10:00 a.m. New York time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment
Date) any applicable accrued interest on, all the Securities which are to be redeemed on that date. 


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Section 11.07.    Securities Payable on Redemption Date.    


        Notice
of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the Redemption Price and any applicable accrued interest) such Securities shall not bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with any applicable accrued and unpaid interest to the
Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.09. 


        If
any Security called for redemption in accordance with the election of the Company made pursuant to Section 11.01 shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate provided by the Security. 


Section 11.08.    Securities Redeemed in Part.    


        Any
Security which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 10.02 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal amount at Stated Maturity equal to and in exchange for the unredeemed portion of the principal amount at Stated Maturity of
the Security so surrendered. 


ARTICLE 12.  


 DEFEASANCE AND COVENANT DEFEASANCE  


Section 12.01.    Company's Option to Effect Defeasance or Covenant Defeasance.    



        The
Company may elect, at its option at any time, to have Section 12.02 or Section 12.03 applied to the Outstanding Securities (as a whole and not in part) upon compliance
with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution. 


Section 12.02.    Defeasance and Discharge.    


        Upon
the Company's exercise of its option to have this Section applied to the Outstanding Securities (as a whole and not in part), the Company shall be deemed to have been discharged
from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 12.04 are satisfied (hereinafter called "Defeasance"),
and thereafter such Securities shall not be subject to redemption pursuant thereto. For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights
of Holders of such Securities to receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's obligations with respect to such Securities under Sections 3.04, 3.05, 3.08, 10.02 and 10.03, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its 


70







 



option
to have this Section applied to the Outstanding Securities (as a whole and not in part) notwithstanding the prior exercise of its option to have Section 12.03 applied to such Securities. 


Section 12.03.    Covenant Defeasance.    



        Upon
the Company's exercise of its option to have this Section applied to the Outstanding Securities (as a whole and not in part), (1) the Company shall be released from its
obligations under Section 8.01(iii), Sections 10.05 through 10.16, inclusive, and 10.19 through 10.21, inclusive and any covenant provided pursuant to Section 9.01(2) and (2) the
occurrence of any event specified in Section 5.01(4) (with respect to Section 8.01(iii)), Section 5.01(5) (with respect to any of Sections 10.05 through 10.16, inclusive and 10.19
through 10.21, inclusive, and any such covenants provided pursuant to Section 9.01(2)), Section 5.01(6) or Section 5.01(7) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 12.04 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such specified Section (to the extent so specified in the case of Sections 5.01(4) and 5.01(5)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. 


Section 12.04.    Conditions to Defeasance or Covenant Defeasance.    



        The
following shall be the conditions to the application of Section 12.02 or Section 12.03 to the Outstanding Securities: 



        (1)   The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by
Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any installment of interest on such Securities on the respective
Stated Maturities thereof, in accordance with the terms of this Indenture and such Securities. As used herein, "U.S. Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States
of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the
holder of such depository receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held,  provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depository receipt. 



71







 

        (2)   In
the event of an election to have Section 12.02 apply to the Outstanding Securities, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Closing Date there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. 


        (3)   In
the event of an election to have Section 12.03 apply to the Outstanding Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur. 


        (4)   No
Default with respect to the Outstanding Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in
Sections 5.01(8) and (9), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). 



        (5)   Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act). 


        (6)   Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound. 


        (7)   Such
Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under such Act or exempt from registration thereunder. 


        (8)   The
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with. 




Section 12.05.    Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.    



        Subject
to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section and Section 12.06, the Trustee and any such other trustee are referred to collectively as the "Trustee") pursuant to Section 12.04
in respect of the Outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. 


        The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to
Section 12.04 or the 


72







 

principal
and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities. 



        Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 12.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to the Outstanding
Securities. 


Section 12.06.    Reinstatement.    



        If
the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 12.02 or 12.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 12.05 with respect to such Securities in accordance with this Article;  provided, however, that if the Company makes any payment of principal of or any premium or interest on
any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so
held in trust. 


        This
instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one
and the same instrument. 


73









        IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written. 



	 	 	NEXTEL PARTNERS, INC.
	

 	
 	

By:	

 
	 	 	 	

	 	 	Title:	 
	 	 	 	

	

 	
 	

BNY WESTERN TRUST COMPANY, Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	Title:	 
	 	 	 	






Indenture Signature Page 








   EXHIBIT A  


Form of Certificate to Be

Delivered in Connection with

Transfers Pursuant to Regulation S 


,          


BNY
Western Trust Company

700 South Flower Street, Suite 500

Los Angeles, CA 90017-4104

Attention: Corporate Trust Administration 


Nextel
Partners, Inc.

4500 Carillon Point

Kirkland, Washington 98033 



	Re:
	Nextel
Partners, Inc. (the "Company")

8 1/8% Senior Notes Due 2011 (the "Notes") 






Dear
Sirs: 


        This
letter relates to U.S. $                        principal amount of Notes represented by a Note (the "Legended Note") which bears
a legend outlining restrictions upon transfer of such
Legended Note. Pursuant to Section 2.05 of the Indenture dated as of May 19, 2004 (the "Indenture") relating to the Notes, we hereby certify that we are (or we will hold such securities
on behalf of) a person outside the United States to whom the Notes could be transferred in accordance with Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933, as
amended. Accordingly, you are hereby requested to exchange the legended certificate for an unlegended certificate representing an identical principal amount of Notes, all in the manner provided for in
the Indenture. 


        You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. 



	

 	
 	

Very truly yours,
	

 	
 	

[Name of Holder]
	

 	
 	

By:	

 
	 	 	 	
 Authorized Signature




A-1








   EXHIBIT B  


Form of Certificate to Be Delivered

in Connection with Transfers to

Non-QIB Institutional Accredited Investors 


,          


BNY
Western Trust Company

700 South Flower Street, Suite 500

Los Angeles, CA 90017-4104

Attention: Corporate Trust Administration 


Nextel
Partners, Inc.

4500 Carillon Point

Kirkland, Washington 98033 



	Re:
	Nextel
Partners, Inc. (the "Company")

8 1/8% Senior Notes due 2011 (the "Notes") 






Dear
Sirs: 


        In
connection with our proposed purchase of U.S. $                              aggregate principal
amount at stated maturity of the Notes, we confirm that: 


        1.     We
understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of May 19, 2004 (the
"Indenture"), relating to the Notes, and we agree to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act"). 



        2.     We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should offer or sell any Notes, we will do so only
(A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter, (D) pursuant to the exemption from registration provided by Rule 144 under the Securities Act, (E) pursuant to an effective registration
statement under the Securities Act, or (F) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein. 


        3.     We
understand that, on any proposed resale of any Notes, we will be required to furnish to you and the Company such certifications, legal opinions and other information
as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the
foregoing effect. 


B-1







 



        4.     We
are an institutional "accredited investor" (as defined in Rule 50l(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment. 


        5.     We
are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional "accredited investor") as to each of which
we exercise sole investment discretion. 


        You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. 



	

 	
 	

Very truly yours,
	

 	
 	

[Name of Transferee]
	

 	
 	

By:	

 
	 	 	 	
 Authorized Signature




B-2











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Exhibit 10.78


Nextel Partners, Inc. Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of May 19, 2004



TABLE OF CONTENTS

EXHIBITS


Nextel Partners, Inc. 8 1/8% Senior Notes due 2011


[FORM OF TRANSFER NOTICE]

[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES AND UNLEGENDED OFFSHORE PHYSICAL AND GLOBAL SECURITIES]

OPTION OF HOLDER TO ELECT PURCHASE